Could Illinois' next governor undo same-sex marriage?

March 12, 2014

(Flickr/Gexydaf)

Chicagoan Christie Pettitt-Schieber has spent a lot of time thinking about the future of same-sex marriage in Illinois. Apparently, so has her girlfriend of two years.

As Pettitt-Scheiber tells it: “She goes on Etsy all the time, and she will, pull up, like, hundreds and hundreds of engagement rings, and then force me to look at the website and go, ‘Do you like this one? Do you like this one? What do you think about this one?’”

But before they take the plunge, Pettitt-Schieber, 26, asked Curious City a more fundamental question about Illinois’ gay marriage law, which was approved by the legislature late last year and is set to take effect statewide on June 1st.

Could the next governor reverse the same-sex marriage legislation that just passed?

Gay marriage has been a hot-button political issue in Illinois for a few years, and the allegiances and beliefs involved don’t always break along party lines. After months of furious lobbying and nose-counting by both backers and opponents, the bill to legalize same-sex marriages passed by a narrow margin in the state House in early November.

But the foundation of Christie’s question gets to an apolitical issue: the relationship between the branches of Illinois government.

Illinois Civics: 101

To find out whether an Illinois governor could unilaterally undo the state’s same-sex marriage law — or any law, for that matter — we called up Charles Wheeler, director of the Public Affairs Reporting Program at the University of Illinois at Springfield and an expert on the state constitution.

Wheeler’s answer is pretty straightforward: “No.”

But there’s a civics lesson behind that “no.”

“The Illinois governor has no ability to unilaterally rewrite the statutes,” Wheeler said. The only way a governor could undo a state law was by the same way it was done in the first place: with the approval of a majority of state Senators and Representatives.

The closest an Illinois governor can get to ruling by fiat is an executive order, Wheeler said. But the Illinois Constitution only lets governors use that power to reorganize parts of state government, not to magic away laws they dislike. And even then, the legislature can overturn an order.

But that doesn’t mean governors haven’t tried.

When former Illinois Gov. Rod Blagojevich was impeached by the Illinois House in 2009, the charges against him weren’t limited to the corruption that would later send him to prison. Buried in the laundry list of Blagojevich’s misdeeds was Article 9, which accused him of “utter disregard of the doctrine of separation of powers” when he unilaterally expanded a state healthcare program that the legislature rejected.

Complicating matters more recently is a ruling last month by Chicago Federal Judge Sharon Johnson Coleman, ordering that gay couples in Cook County must be issued marriage licenses immediately, rather than waiting for the new law’s original June 1 start date. Coleman wrote that the state’s current prohibition of same-sex marriages (which is still in effect until June) violates the U.S. Constitution. That ruling put an end to one downstate Illinois Senator’s move to repeal the gay marriage law.

For Wheeler, all of this adds up to one conclusion: “I would be willing to bet any amount of money that Illinois will not repeal same-sex marriage.”

Answers from the candidates

Given that any repeal of the gay marriage law would take an act of political will (versus executive decree), Curious City asked the two Democrats and six Republicans running in the March 18th gubernatorial primary whether they would work to overturn same-sex marriage.

Some answers required some tooth-pulling (as you’ll hear in the audio excerpts below), but here’s what they had to say.

Democratic Gov. Pat Quinn: “The Governor led the charge to make Illinois the 16th state to embrace full marriage equality, and he is proud to have gotten the job done,” spokeswoman Brooke Anderson wrote in an email. “This was a major step forward for Illinois. As long as he’s Governor, he will defend this law and make sure all couples have equal rights in Illinois.”

Democrat Tio Hardiman, anti-violence advocate: “It’s the law. If somebody was to bring some legislation to my desk, we would look at it. But ... I plan to enforce that law. People need to be happy in their lives. I’m not here to, you know, try to play God with people’s lives.”

The four candidates running for the Republican Party’s nomination were asked a similar question recently by the Chicago Tribune editorial board.

Republican Illinois State Sen. Bill Brady: “I’d be consistent with my position,” Brady said. He clarified that he would sign a repeal “if it came to me,” but added “it’s unrealistic to even address the issue.” Brady voted against the bill in the legislature.

Republican businessman Bruce Rauner: “I would not sign it if there hasn’t been a referendum on it. I wanna see what the voters want on that issue. I won’t take any action on that issue unless I see what the voters want.” Rauner has repeatedly refused to reveal how he feels about gay marriage.

Republican Illinois State Sen. Kirk Dillard: “If [a repeal] got to my desk [I would sign it], but that’s not gonna happen. Let’s focus on things like the economy and how we’re gonna fix the state’s finances.” Dillard voted against the bill in the legislature.

Republican Illinois State Treasurer Dan Rutherford:  “It’s not gonna get to the desk. It’s not gonna pass. It’s not gonna get there. It is the law. ... I did not support the bill from the religious standpoint of it.” Rutherford was out of the legislature when the same-sex marriage bill was passed, though he previously voted in favor of same-sex civil unions when he was a state senator.

 

It’s all politics

If the unilateral repeal of gay marriage by an Illinois governor is legally impossible, it’s also politically improbable, said Gregg Durham, an Illinois pollster who has worked with many Republican candidates (though he said he is not currently working for any gubernatorial campaign.)

Durham said the Republican candidates’ hesitation to talk about repealing gay marriage — even if they believe it should be repealed — is because it’s a losing issue for the Illinois GOP.

“I would tell them to run away as fast as they could from the question,” Durham said.

Why?

Public opinion, for one: Durham’s polling reflects growing approval of same-sex marriage in Illinois, and more resignation from people who are still opposed to it.

“We’re starting to hear less and less about changing it, and more about, ‘Fine, can we get onto more important issues now?’” he said.

Durham also cites the political math in Springfield. Democrats enjoy large majorities in both houses of the General Assembly, and the party has two powerful leaders — House Speaker Michael Madigan and Senate President John Cullerton. Both exercise broad control over which bills are actually called up for a vote.

And even with those hefty majorities, and the support of some heavy-hitting Democratic pols, the gay marriage vote was still a tough one for rank-and-file lawmakers. And the difficulty wasn’t just for Republicans, whose party platform defines marriage as being between one man and one woman.

Durham’s own polling also showed opposition from some Democrats in Chicago and southern Illinois.

“No one likes to pay for real estate twice,” Durham said. “The passage of that bill took a long time and a lot of effort by a lot of people. Now they don’t wanna go back and have a second vote on it — anybody, probably on either side of the issue.”

Alex Keefe is a political reporter at WBEZ. You can follow him on Twitter and Google+.

Note: This report received additional support through Front & Center, an occasional WBEZ series funded by The Joyce Foundation.