Despite the fact that Illinois’ marriage equality law, signed last week by Governor Pat Quinn, does not go into effect until next June 1, a federal district judge on November 25 ordered Cook County Clerk David Orr in Chicago to issue a marriage license to Vernita Gray and Patricia Ewert now.
Gray and Ewert, who have been a couple for five years and desperately want to marry, may not be able to hold out until next June. Gray is suffering from advanced breast cancer and may not make it that long.
The women filed suit on November 22, contending that the existing Illinois law banning same-sex marriages deprives them of due process and equal protection in violation of the 14th Amendment, echoing the existing marriage equality lawsuits on file with the Cook County Circuit Court. Those cases, in which motions to dismiss were previously denied, are being held in abeyance pending the June 1 effective date of the new law.
The women filed their motion for immediate relief on a Friday, and the court accommodated them with a hearing on Monday. The motion made clear why the women cannot wait until next June.
“Unfortunately, Vernita may pass away in the near future,” their filing read. “Unless this Court acts, Vernita and Pat will be permanently denied the benefits, both tangible and dignitary, of legal marriage. For example, unless Plaintiffs are allowed to legally marry, they may face discrimination in hospital settings, an estate tax burden, and other harms, including challenges establishing eligibility for Social Security benefits as a surviving spouse. Given Vernita’s extensive medical expenses, the additional cost of being denied access to legal marriage is particularly burdensome.”
The complaint pointed out that no adequate remedy in money damages exists for the deprivation of the status of marriage, and that no harm would be done to the State of Illinois by granting them immediate relief. Indeed, the state government has now decided as a matter of public policy that same-sex couples should be entitled to marry.
The effective date of the new law, however, was dictated by the timing of the votes in the two houses of the Legislature. While the Senate acted in February, the House of Representatives did not act until the fall “veto session.” Under the Illinois Constitution, any legislation approved in such a session cannot take effect earlier than the following June 1, unless it is approved by a super-majority of the House.
Illinois constitutional requirements, however, would be preempted by federal constitutional considerations, the women argued. In effect, their motion maintained they have a federal constitutional right to marry, and any state rule that makes that impossible — even for just seven months — would be inflicting irreparable injury on them due to Gray’s medical condition.
District Judge Thomas M. Durkin was persuaded by this argument and signed the order presented by counsel for the women. Though he did not issue a written explanation, merely signing the one-page order, his agreement to do so implicitly signaled his finding that plaintiffs were likely to prevail on the merits of their claim to a federal constitutional right to marry under the 14th Amendment.
The Cook County clerk promptly indicated his office would issue a license as soon as he receives a duly executed application. Clerk Orr, who is a named defendant in the pending state court lawsuits, is not defending the marriage ban on the merits; neither is Attorney General Lisa Madigan, who agrees that same-sex couples have a right to marry. Defense of the existing marriage ban in the lawsuits now on hold was left to county clerks from outside the Chicago area, who intervened as defendants represented by a Catholic litigation group, the Thomas More Society.
A large legal team came together to represent Gray and Ewert, including groups of attorneys from Kirkland & Ellis LLP and Miller Shakman & Beem LLP, staff attorneys from Lambda Legal’s Chicago office, and attorneys for the American Civil Liberties Union’s Roger Baldwin Foundation in Chicago.