Lawyers for 25 Illinois gay couples are asking a Cook County judge to skip a trial and declare the state’s same-sex marriage ban unconstitutional, pointing to a recent U.S. Supreme Court decision that will grant some federal benefits to legally married gay couples.
Attorneys for the couples filed a motion for summary judgement on Wednesday, arguing the justices’ decision to overturn a part of the federal Defense of Marriage Act last month adds new urgency to their cause.
“Illinois is now the only thing standing between these families and the numerous federal protections, benefits, rights and responsibilities that go to married families,” said Lambda Legal lawyer Camilla Taylor, who is representing the couples along with the American Civil Liberties Union of Illinois.
The Supreme Court’s decision paves the way for legally married same-sex couples to get some federal benefits previously reserved to heterosexual couples, such as veterans’ benefits or tax breaks.
But the decision likely won’t apply to Illinois couples who have entered into civil unions, or even couples who have been legally married in one of the 13 states that currently allow same-sex marriage. The couples are now asking that a Cook County judge quickly strike down the state’s gay marriage ban, saying civil unions don’t provide equal protections in light of the high court’s ruling.
For 81-year-old James Darby, a Korean War veteran who is a plaintiff in the case, that means Illinois law will prevent him from being buried in a military cemetery alongside his partner of 50 years.
“I served my country and I come back home, and I expect to have the same rights as everybody else,” Darby said Wednesday. “But unfortunately, I am considered second-class citizen in my own home state.”
But the recent Supreme Court decision doesn’t mean states aren’t allowed to make their own marriage laws, said Peter Breen, a lawyer with the conservative Thomas More Society. His group is defending the state law that defines marriage as being between a man and a woman, which was passed in 1996.
“There was nothing discriminatory about that action,” Breen said, referring to the state law. “And a decision in 2013 by the U.S. Supreme Court, on an issue of federal law, doesn’t somehow make our Illinois state law defining marriage unconstitutional.”
Breen accuses the plaintiffs in the case of dragging their feet to avoid a debate on the merits of the state law. Arguments on whether to dismiss the case are set for Aug. 6.
The 25 same-sex couples from around Illinois first filed their lawsuits last year, after each was denied a marriage license by the Cook County Clerk’s office. But in a rare move, Cook County State’s Attorney Anita Alvarez and Attorney General Lisa Madigan - both Democrats - refused to defend the state’s gay marriage ban in court, saying they thought the state law was unconstitutional. A judge has since allowed some downstate county clerks to act as defendants in the case.
A measure to legalize same-sex marriage is still stuck in the Illinois General Assembly, after lawmakers left Springfield in May without taking a vote on it.
Alex Keefe covers politics for WBEZ. Follow him @akeefe