Equal Protection: Illinois
Equal Protection: Illinois to Face the Question
Marriage equality lawsuit challenges Illinois equal protection, due process
Marriage equality advocates are pushing forward in Illinois, challenging the state's standard of separate-but-equal civil unions that, as most are aware, are not actually equal.
Last week, a federal judge allowed equal protection to join the gay fray; Judge Claudia Wilken ruled that California was bound by equal protection to provide proper and equal benefits for the legally-married same-sex spouses public employees. The Illinois suit, brought by Lambda Legal and the ACLU, charges that the separate-but-equal arrangement violates the state's constitutional standards of equal protection and due process. Specifically, the target is the clerk of Cook County (Chicago and environs), for refusing to issue same-sex marriage licenses.
Activists say they will continue to press lawmakers to legalize same-sex marriage. But these lawsuits mean that the judicial system, and possibly the Illinois Supreme Court, will play a role as well.
"We always thought this was something that had to happen," said ACLU attorney John Knight. "We think it's time to try in the courts, and we're optimistic about our chances."
President Barack Obama formally endorsed same-sex marriage earlier this month, and his statement was echoed by Gov. Pat Quinn.
"We feel like we're at a tipping point," said Camilla Taylor, a Lambda Legal attorney who headed up a similar case that led to the legalization of gay marriage in Iowa. "You reach a point where you can no longer tell these families that they should hold off. You lack the justification when we reach a national moment, when it's clear that our time is now.
(Huppke)
While the two organizations have mustered twenty-five same-sex couples as plaintiffs, the poster pairs for the lawsuit appear to be two families parented by same-sex couples. The ACLU presents Carlos Briones and Richard Rykhus have been together for eleven years, and raise together a seven-year old son. "Most couples who've been together in a long-term, committed relationship like we have," explained Rykhus, "don't have to give a 10-minute explanation to their children about how their relationship is or is not recognized." Lambda Legal, meanwhile, offers Theresa Volpe and Mercedes Santos, whose twenty-year partnership now includes two children, ages four and seven. Santos said that a year spent joined in civil union "just kind of defined even more the differences between our family and other families who are married". Volpe reminded of confusion about the nature and status of civil unions: "Our daughter had to explain that to her classmates," she told reporters. "We shouldn't have to explain that. Our daughter shouldn't have to explain that."
Now,
this is where things get interesting. Rex Huppke tries to explain:
The two Illinois lawsuits are similar to ones filed in California not long after the state enacted a domestic partnership law that provided the legal equivalent of civil unions. The suits in California led the high court there to rule that it was unconstitutional to ban same-sex marriage. But that ruling was eventually trumped by Proposition 8, a ballot initiative that barred gay and lesbian couples from marrying.
That turn of events in California is one reason some activists would prefer to win marriage equality through the Legislature, believing it puts same-sex marriage rights on more secure footing.
But then add in a couple of twists:
Cook County Clerk David Orr's office issued a statement from the clerk, who is out of the country: "The time is long past due for the state of Illinois to allow county clerks to issue marriage license to couples who want to make their commitment. I hope these lawsuits are the last hurdle to achieving equal marriage rights for all."
Because the governor has voiced his support for same-sex marriage, it's unclear whether the state will fight the lawsuit. Obama has instructed the U.S. Department of Justice to stop defending any lawsuits against the federal Defense of Marriage Act, which defines marriage as the legal union of one man and one woman.
That is to say, the county clerk being sued is on board with the purpose of the lawsuit, and if Cook County either loses the suit or fails to fight it, the state runs into the same issue with its governor.
Naturally, traditionalists are incensed:
Peter Breen, executive director and legal counsel of the Chicago-based Thomas More Society, which opposes gay marriage, said he would expect the state's attorney and the attorney general's office to "defend the constitutionality of state laws."
"We would expect them to forcefully defend the state's marriage law," Breen said. "We will provide whatever assistance we can to help them in that defense."
Robert Gilligan, executive director of the Catholic Conference of Illinois, said the lawsuits show that the gay rights advocates who fought for civil unions never intended to be content with that law.
"Civil unions afford all the benefits of marriage," he said. "The justification for passage of civil unions was to get all those legal rights. But we had said all along that civil unions weren't the issue and that same-sex marriage was really the issue. This clearly proves our point, that really what they want is marriage."
Breen said he doesn't believe the equal protection and due process arguments are applicable to the issue of same-sex marriage: "Conceptually, when you look at the foundation of the country and the fact that the folks who gave us the equal protection and due process guarantees would have rejected same-sex marriage, to turn around and try to use those same clauses to escort this new legal construct into existence makes no sense."
It is worth pointing out that Breen's suggestion doesn't make a whole lot of sense when carried over to general constitutional considerations. After all, the Founders didn't really know what a modern assault rifle would be like; and to judge by the NRA's rendering of the Second Amendment, the political arena is wrong to exclude weapons of mass hazard, such as grenade launchers, mortars, or even nuclear weapons in the hands of private citizens—that is, yeah, I might not see the point of packing an M-203 for personal defense because it's excessive, and is there really any question about the intimacy of defending oneself with a W87 warhead, but if we insert Breen's logic, those points are moot.
And while it might remain an open question what the Founders would have thought of child pornography—it was okay to get on a ten year-old girl in Massachusetts at least as late as 1875—people tend to exclude child pornography from free expression under the First Amendment. Again, if we apply Breen's logic, it doesn't matter, and child porn ought to be legal and unrestricted.
The most obvious problem with Breen's constitutional logic is that if the Equal Protection clause of the Fourteenth Amendment intended only to apply to skin color, the point could easily have been made; see, for instance, Amendment XV.
Of Mr. Gilligan's argument, it should be noted that civil unions
do not provide "all those legal rights", which returns the American constitutional argument to the days of
Plessy v. Ferguson, which established the infamous separate-but-equal standard. And it is worth noting that the
one dissenting vote on the Supreme Court in
Plessy came from Justice Harlan, a man who had previously owned slaves and, as such, could apparently foresee the functional problems with such an outcome.
It only took sixty years to deal with separate-but-equal, so, hey, maybe by 2070, or so, Gilligan's argument will be obsolete, anyway. And, you know, in terms of humanity and civil rights, what's sixty years, more or less?
So now Illinois faces the question, and the asking is apparently reasonably coordinated. With the governor as well as the targeted county clerk on board with the cause, one might well suspect that equal protection will prevail for same-sex couples in Illinois:
It should be noted, as well, that Section 3 of Article I therein also notes, "nor shall any preference be given by law to any religious denomination or mode of worship".
The lawsuit goes forward under Section 2, Due Process and Equal Protection. That
should be sufficient. With the governor and the targeted county clerk on board with the lawsuit, it will be interesting to see what the traditionalists bring to court.
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Notes:
Huppke, Rex W. "Lawsuits challenge Illinois gay marriage ban". Chicago Tribune. May 30, 2012. ChicagoTribune.com. May 30, 2012. http://www.chicagotribune.com/news/local/ct-met-gay-marriage-lawsuit-20120530,0,7824171.story
Constitution of the State of Illinois. (n.d.) ILGA.gov. May 30, 2012. http://www.ilga.gov/commission/lrb/con1.htm