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Filed under: Darby/Lazaro

Illinois court refuses to allow anti-gay churches, advocacy group to join lawsuit against state marriage equality ban

By Jacob Combs

The Illinois court considering a challenge to the state’s marriage laws by a group of same-sex couples ruled Friday that it would not allow several anti-gay groups to join the case as defendants, according to a press release issued after the order by Lambda Legal, who is representing the couples.  The motion to intervene denied Friday by Judge Sophia Hall was brought by two churches, the Church of Christian Liberty and Grace Gospel Fellowship, and an anti-gay advocacy group called the Illinois Family Institute (IFI).

In her ruling, Judge Hall writes that Illinois courts considering such motions must consider whether “the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action.”  Specifically, as she writes, the Illinois Supreme Court has held that parties wishing to intervene in litigation must show an interest “greater than that of the general public, so that the party may stand to gain or lose by the direct legal operation and effect of a judgment in the suit.”

In their motion to intervene, the two churches argue that should Illinois’s ban on marriage equality fall, they would be forced to perform marriages for same-sex couples, thereby violating their religious liberty.  The plaintiffs disagreed, arguing that a ruling in their favor would only affect civil marriage in Illinois, and would not force any religious institutions to perform marriages against their will.  As Judge Hall points out, the churches could not point to any section in Illinois’s marriage laws that require religious institutions to perform any specific marriage ceremony and so, as she writes in her decision, an end to the state’s marriage equality ban would in fact do nothing to affect the churches right to deny marriages to same-sex couples.

In addition, the churches argued in their motion that they were concerned they might face anti-discrimination lawsuits under the Illinois Human Rights Act (IHRA) if Illinois’s marriage equality ban were declared unconstitutional.  But Judge Hall agrees with the plaintiffs that these claims are spurious, writing, “the IHRA and IMDMA [Illinois’s marriage laws] are separate and distinct statutes, and a judgment in this case on the IMDMA would not alter the Churches’ obligations under the IHRA.”  (Judge Hall also points out that the churches’ religious freedoms would still be protected under both the Illinois and United States constitutions.)

The Illinois Family Institute, in its motion to intervene, argued that its interest is “greater than the general public” because it was one of the main lobbying forces responsible for enacting Illinois’s marriage equality ban.  But, Judge Hall wrote, the “Court finds that IFI has not established an interest in the case that would warrant permissive intervention…. IFI’s interest in the law as an advocacy group does not rise above that of other members of the public who believe the law should be upheld.”  Judge Hall did note that she would allow both the IFI and the churches to file amicus briefs in support of Illinois’s marriage laws.

To recap briefly: when the Darby and Lazaro lawsuits were filed seeking to strike down Illinois’s marriage ban, the named attorney (Cook County Clerk David Orr) refused to defend the ban, as did the state attorney general and the Cook County attorney.  Two other county clerks (those of Tazewell and Effingham counties) requested to defend the law in Orr’s stead, and were allowed to do so by the court.  With today’s ruling, these two clerks will be the only defendants in the case actually defending the laws in question.

14 Comments December 3, 2012

Illinois legislature may consider marriage equality bill in January

By Jacob Combs

The Illinois General Assembly could vote on a marriage equality bill as early as January 2013, according to a press release issued yesterday by Lambda Legal.  Along with the ACLU, Lambda is representing several same-sex couples in the state seeking equal marriage rights in the companion cases of Darby v. Orr and Lazaro v. Orr; yesterday, the plaintiffs in those cases met with state legislators to urge a vote on the bill, HB 5710, also called the Religious Freedom and Marriage Fairness Act.  From the release:

“We want our lawmakers to know how important this is to our family,” said Anne Dickey, plaintiff in Darby v. Orr. “Every day, our child feels different from his friends because Laura and I aren’t allowed to get married. Whether it is through the courts or the legislature, we need the freedom to marry.”

“Our family, our love and our commitment deserves the recognition and dignity of marriage,” said Richard Rykhus, a plaintiff in Lazaro v. Orr. “We believe that Illinois law should recognize fully the family that we have built together.”

Since Lambda Legal and the ACLU of Illinois filed their suits, both the Illinois Attorney General and the state attorney for Cook County (where the cases were filed) have publicly stated that they support marriage equality.  Cook County Clerk David Orr, the named defendant in the cases, also supports marriage equality and has declined to defend the state’s marriage laws.  In July, two other county clerks filed motions with the court to defend those laws, and a judge heard arguments in September from an anti-gay group called the Illinois Family Institute seeking to intervene in the case.

Support for marriage equality in Illinois has increased by 10 points in just two years, a poll released in late September showed, with 44 percent of respondents backing equal marriage rights.  Equality Illinois, one of the state’s largest LGBT rights organizations, announced yesterday that it is opening new offices in the suburban Chicago area and has appointed two new field directors to expand the group’s outreach programs in the state.

3 Comments November 29, 2012

Hearing in Illinois marriage equality lawsuit tomorrow

By Scottie Thomaston

Tomorrow, a hearing will be held in the marriage equality lawsuit taking place in Illinois. The lawsuit, filed by Lambda Legal and the ACLU, is backed by the Illinois Attorney General and the Cook County Clerk; the ban is defended by two county clerks and an anti-gay group has moved to intervene. As Lambda Legal writes, “Soon after, the Alliance Defending Freedom, an Arizona-based antigay group, moved to intervene on behalf of the Illinois Family Institute (IFI), an organization dedicated to advancing the view that gay people are sinful. IFI has a long history of making derogatory and untruthful statements about lesbian and gay people. Lambda Legal and the ACLU of Illinois have opposed IFI’s efforts to intervene.”

The court, “will hear oral argument tomorrow regarding whether an antigay group has a right to intervene in two marriage cases.”

The Illinois lawsuit is a state-based case, not a federal one, so its only implications thus far would be to end the ban on marriage equality in Illinois, if it is successful. Lambda writes that, “[b]y excluding them from marriage and relegating them to civil unions, the government has marked them as different and less worthy than other Illinois families—and that is exactly how others treat them. Such a restriction is a violation of the Illinois Constitution’s guarantee of equal protection and due process. Same-sex couples and their children have suffered disrespect in schools, workplaces and hospitals, and in their everyday interactions with government for long enough.”

The case is called Darby v. Orr.

1 Comment September 26, 2012

Cook County State Attorney files brief in support of marriage equality in Illinois

By Jacob Combs

Earlier this month, we wrote here at P8TT about two upcoming marriage equality cases in Illinois, Darby v. Orr and Lazaro v. Orr, that argue the state’s civil unions law violates gay couples’ equal protection rights by treating them differently from straight couples.  The twist in Illinois is that David Orr, the Cook County Clerk and the defendant in both cases, supports marriage equality and has no plans to defend the civil unions law, and the state Attorney General has also expressed her plans to intervene in the case in favor of the plaintiffs and file a brief in support of equal marriage.

As expected, the Cook County State Attorney’s office filed a motion in the two cases yesterday supporting the plaintiffs’ position and agreeing that limting marriage in the state to straight couples is unconstitutional.  “We believe the plaintiffs are correct in their assertion that the Illinois Constitution upholds marriage equality for same sex couples just as it does for opposite sex couples,” Sally Daly, a spokeswoman for the attorney’s office, told the Chicago Tribune in an email.

On June 21, Judge Moshe Jacobius will hear a motion to combine the two lawsuits.  It remains unclear who will step in to defend the civil unions law, although the Chicago-based Thomas More Society, a conservative legal group which is active in abortion litigation, has said that it will provide support to anyone who defends Illinois’s marriage equality ban.

In related news, the AP published a piece yesterday titled “5 reasons gay marriage losing streak may be over,” hypothesizing that marriage equality opponents’ success in 32 states that have considered marriage bans might be coming to an end.  The AP pointed specifically to Washington and Maine as states where marriage equality advocates could chalk up their first wins: Washington because of the success of an “everything but marriage” referendum which passed by a 53-47 percent margin and the support of some Republican lawmakers (including a Republican representative from a conservative part of the state who said that her district seems “far more receptive to it than they’ve ever been in the past”), as well as increasingly positive polling, and Maine because the state narrowly voted down marriage rights a few years ago and advocates have been working to change voters’ hearts and minds.

Finally, the AP notes that President Obama’s support of marriage equality could make a difference in the two states.  He continues to be popular in Washington, with a 53 percent job approval rating, and marriage advocates in Maine are using his statement to help voters on the fence continue their evolution.  If Obama were to campaign on marriage equality in the two states, he could very well help bring full marriage rights to Washington and Maine.

14 Comments June 15, 2012

Illinois Attorney General announces support for marriage equality lawsuits

By Jacob Combs

The upcoming court battle in Illinois over the constitutionality of civil unions and the state’s prohibition on marriage equality looks like it promises to be an intriguing and unusual one.  Earlier this week, Lambda Legal and the ACLU of Illinois announced that they were simultaneously filing two lawsuits, Darby v. Orr and Lazaro v. Orr, arguing that the civil unions the state began offering to gay and lesbian couples last year infringe upon those couples’ equal protection rights under the Illinois Constitution.

David Orr, who is the official government defendant in both lawsuits by virtue of his position as Cook County Clerk, is himself a supporter of marriage equality: in a statement released by his office last week, Orr wrote of his “hope [that] these lawsuits are the last hurdle to achieving equal marriage rights for all.”  Because of Orr’s position, it seems unlikely that he will elect to put forward any strong defense of the status quo once the cases make their way to court.

In another twist, Illinois Attorney General Lisa Madigan announced over the weekend her plans to intervene in the two marriage cases–on the side of the plaintiffs.  Usually, state Attorneys General intervene in court cases when state laws are challenged in order to support those statutes, or, as in the case of Proposition 8 and California Attorney General Kamala Harris (like her predecessor Jerry Brown), they choose to opt out of such lawsuits if they do not support the law in question.  Madigan, however, believes that Illinois’s civil unions law does not in fact adequately protect equal protection rights, and plans to intervene on behalf of Lambda Legal and the ACLU in both cases.

With both Orr and Madigan expressing support for the lawsuits, it’s an open question now as to who will actually defend the constitutionality of the civil unions law in court.  David Orr would normally be represented in court by Anita Alvarez, the state attorney for Cook County, but it is unclear if the Democratic attorney will opt to defend the law, especially after Madigan’s announcement.

In California, when both the Governor and Attorney General declined to support Proposition 8 in court, the constitutional amendment’s official backers intervened in court to defend it.  In Illinois, however, there are no ballot proponents to stand up for the civil unions law (since it was enacted legislatively and not by a popular vote), and Democrats control both chambers of the legislature.  It will be interesting to see who steps forward to defend the law, and if the courts decide to allow them to do so.

19 Comments June 4, 2012

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