CHICAGO – Twenty-five couples who filed a lawsuit challenging Illinois' ban on gay marriage asked a judge on Wednesday to rule quickly in their favor, saying a recent U.S. Supreme Court decision striking down part of a law denying federal benefits to married gay couples creates a new urgency in the state.
Illinois legalized civil unions two years ago, but the recent Supreme Court decision applies only to married gay couples.
Lambda Legal and the American Civil Liberties Union of Illinois filed a motion for summary judgment in Cook County Circuit Court. They said Judge Sophia Hall could rule on the motion as soon as Aug. 6, when oral arguments are scheduled on a defense motion to dismiss the lawsuit.
"We will say that we should win as a matter of law" under the state constitution, said Camilla Taylor, Lambda Legal's marriage project director. "Illinois now is the only thing standing between these families and numerous federal rights."
A lawyer representing five downstate county clerks – who are defending the ban after the state attorney general and Cook County prosecutor refused to do so – said the request is premature because all the evidence has not yet been presented. He also complained that the plaintiffs took nine months to respond to the motion to dismiss the case.
"For them to come in [now] ... has me wondering if they're particularly confident of their legal position as a matter of law," said Peter Breen, executive director of the Thomas More Society, a public interest law firm that opposes gay marriage.
Wednesday's motion comes a day after civil rights lawyers in Pennsylvania filed a lawsuit in federal court seeking to overturn that state's 17-year-old ban on same-sex marriage and to force the state to recognize the marriages of same-sex couples who wed in other jurisdictions.
Same-sex marriage is legal, or soon will be, in 13 states. Federal courts in California are so far the only ones that have said a state same-sex marriage ban violates the U.S. Constitution. Meanwhile, federal court challenges are emerging in other states, including Nevada, Hawaii and Michigan. In the coming days and weeks, the ACLU plans to lodge same-sex marriage challenges in North Carolina and Virginia.
It also is pursuing same-sex marriage legislation in several other states and referenda in Oregon and Nevada in the coming years, ACLU lawyers said.
Illinois' lawsuit was filed last year against Cook County Clerk David Orr, a supporter of gay marriage whose office is responsible for issuing marriage licenses in Chicago and the rest of the county. All plaintiffs had applied for and been denied marriage licenses in Cook County.
But in an unusual move, Illinois Attorney General Lisa Madigan and Cook County State's Attorney Anita Alvarez refused to defend the state's 17-year-old ban, which defines marriage as between a man and a woman, saying it violates the state constitution's equal protection clause. The downstate clerks later were granted permission to intervene.
John Knight, director of the Lesbian, Gay, Bisexual, Transgender Project of the ACLU of Illinois, said only marriage will ensure that gay couples in Illinois get protections that other married couples enjoy, including family medical leave and veterans and tax benefits.
James Darby, an 81-year-old Korean War veteran, said he wants to be buried in Abraham Lincoln National Cemetery in Illinois, along with his partner of 50 years, Patrick Bova, 75. But as of now, that's impossible.
"I gave up four years of my life during the Korean War, I served my country ... and I came back home and expected to have the same rights as everyone else," said Darby. "But I'm considered a second-class citizen in my own state."
Bova said he's "looking forward to the time when our marriage and its practical and emotional aspects will be realized. I think 50 years is a long time to wait."