As a lawsuit to overturn Illinois’ ban on same-sex marriage moves along slowly in Cook County Circuit Court, a decision made yesterday in a New York federal appeals court could render the Prairie State suit moot.
The Court of Appeals for the Second Circuit in New York ruled that the 1996 federal Defense of Marriage of Act, or DOMA, which defines marriage as between one woman and one man, runs afoul of the U.S. constitution's equal protection clause. It is the second time that a federal circuit court has found DOMA unconstitutional, following a decision by a Boston court earlier this year.
Gay marriage advocates see the rulings as “part of the sense of momentum and broadening national consensus” in favor of same-sex marriage, according to ACLU Illinois spokesman Ed Yohnka.
Almost invariably, the U.S. Supreme Court intervenes on cases where more than one circuit court has found a federal law unconstitutional. The high court could take up and rule on the constitutionality of DOMA within the year.
Federal action on gay marriage would be a dramatic turn of events as states have largely been left to their own devices since President Bill Clinton signed DOMA into law sixteen years ago. Illinois passed its own version of DOMA in 1996, the Illinois Marriage and Dissolution Act, which ACLU Illinois and Lambda Legal filed a legal challenge of in May.
Illinois Attorney General Lisa Madigan and a number of other key Illinois officials, all Democrats, also indicated their support of the lawsuit. The situation would seem to favor overturning the same-sex marriage ban. But it has had a practical effect of muddying the case.
Two downstate county clerks will defend the state law, and now Cook County Circuit Court Judge Sophia Hall, who is hearing the case, is deciding whether other anti-gay marriage groups, such as the Illinois Family Institute, should also legally defend the ban. Hall has scheduled a hearing November 7 to consider what additional groups should step in on the case.
A U.S. Supreme Court decision on DOMA could make the lawsuit, and pending legislation to legalize gay marriage irrelevant “depending on the scope of the federal decision,” says State Rep. Greg Harris (D-Chicago), sponsor of a state law to legalize same sex marriage.
The U.S. Supreme Court could rule that individual states must determine marriage rights. Alternatively, the U.S. Supreme Court could clearly state whether the federal government will recognize same-sex marriage.
Federal recognition carries with it benefits that state recognition does not.
Human Rights Watch, which advocates for same-sex marriage, has compiled 1,138 various benefits accrued to federally-recognized married couples, including social security and tax breaks.
State recognition of same-sex marriage is a “critical statement in terms of assuring government treats everyone equally,” says Yohnka. Same-sex couples in Illinois, though, already receive the state benefits that heterosexual couples receive through a civil union bill Gov. Pat Quinn signed into law in 2011.
Meanwhile, state uncertainty on gay marriage exploded as an issue earlier this week in Illinois’ 68th district House race. Republican Rep. John Cabello, who was appointed to the seat earlier this year, apparently compared gay marriage to bestiality. “Does [gay marriage] now say that somebody can get married to their dog?” Cabello reportedly said at a Tea Party forum.
Democratic challenger Carl Wasco called the remarks, “simply nonsensical and offensive to the entire gay community,” in a statement.
The remarks arguably show a strain of still heated opposition to gay marriage in the Illinois Republican Party. “You can’t call him a fringe person,” Harris says. “He is an appointed member of the Illinois legislature.”