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Judge allows Illinois marriage case to move forward
by Matt Simonette
2013-09-27

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A judge ruled Sept. 27 that a lawsuit filed on behalf of several Cook County same-sex couples wishing to marry can proceed.

Ruling on a motion to dismiss Darby v. Orr and Lazaro v. Orr, Judge Sophia Hall, who is a lesbian, dismissed three of the five claims, but allowed two—claims to violation of equal protection as well as due process—to stay. The court will reconvene Oct. 8.

The lawsuits were filed against Cook County Clerk David Orr in mid-2012. The plaintiffs in the case are being represented by Lambda Legal and ACLU Illinois. Orr, who is in favor of marriage equality, has refused to defend the state's marriage ban, so the Thomas More Society, a conservative law firm, is representing five opposing county clerks in the matter.

Marriage equality advocates were confident from the ruling.

Camilla Taylor, marriage project director for Lambda Legal Midwest, said, "This is a fantastic day for the plaintiffs in the lawsuits, and for lesbian and gay couples, and their children around this state. The court has allowed this lawsuit to go forward."

Taylor added that the remaining claims were the most fundamental to the suit. "That is the most important thing—getting to the merits of the unconstitutionality of the marriage ban."

Ed Yohnka of ACLU Illinois said that the core of the lawsuit remained. "We look at this as a great victory. You have to get over this step to get to presenting the evidence and we think we have great evidence. The equal protection claim was at the core of what was decided in Windsor, so the fact that that was a claim that prevailed really gives us a great basis to move forward."

John Knight, director of the LGBT Project at the ACLU of Illinois, added in a statement, "This ruling is a big step forward in putting an end to government-sanctioned discrimination against same-sex couples and their families in Illinois, but we must continue to push forward until loving lesbian and gay couples have the freedom to marry here in Illinois."

Hall dismissed claims based on violations of privacy and sex, as well as special legislation.

PRESS RELEASE from ACLU and Lambda Legal below:

Chicago — In another victory on the road to the freedom to marry for thousands of gay and lesbian couples and their families, Circuit Court of Cook County, Chancery Division Sept. 27 denied a motion to dismiss the two landmark cases seeking the freedom to marry for same-sex couples in Illinois, allowing plaintiffs' claims for violation of the fundamental right to marry, and for discrimination based on sexual orientation to go forward.

Although the court dismissed the sex discrimination and other claims specific to the Illinois constitution, the plaintiffs can obtain everything they seek — a declaration that the marriage ban is unconstitutional and an order requiring the state to issue marriage licenses to same-sex couples — through the claims that remain. Lambda Legal and the American Civil Liberties Union of Illinois filed the cases in May of 2012.

The decision today comes in response to a motion brought by interveners representing a number of downstate clerks defending the Illinois ban on marriage for gay and lesbian couples. These clerks intervened after Cook County Clerk David Orr and Attorney General Lisa Madigan refused to defend the statute. The downstate clerks had asked the court to dismiss the cases without any further exploration of the constitutional questions raised by the 25 plaintiff couples represented in the lawsuit. The court rejected that argument.

"We are pleased that the court saw that our couples have a right to their day in court on the merits of their claims for liberty and equality. Illinois' marriage ban not only brands these couples and their children as inferior under state law, but now that the federal law known as "DOMA" has been struck down by the Supreme Court, Illinois is the only thing standing between these families and full federal respect for their relationships," said Camilla Taylor, Marriage Project Director for Lambda Legal. "Loving same-sex couples in Illinois can't wait any longer for the freedom to marry. We're excited to get to the next step and make the case for equality."

"This ruling is a big step forward in putting an end to government-sanctioned discrimination against same-sex couples and their families in Illinois, but we must continue to push forward until loving lesbian and gay couples have the freedom to marry here in Illinois," said John Knight, Director of the LGBT Project at the ACLU of Illinois. "Same-sex couples and their children have been waiting far too long in Illinois for the freedom to marry, watching as state after state has recognized that lesbians and gay men should have the freedom to marry while Illinois continues to deny them the respect associated with marriage, as well as the full access to the federal protections and responsibilities."

Read more about Darby v. Orr here: www.lambdalegal.org/in-court/cases/darby-v-orr and Lazaro v. Orr here: www.aclu-il.org/lazaro-and-matos-v-orr22/ .

Camilla Taylor, National Marriage Project Director and Christopher Clark, Senior Staff Attorney in Lambda Legal's Midwest Regional Office are handling the case Darby v. Orr for Lambda Legal. John Knight, Harvey Grossman and Karen Sheley are handling the case Lazaro v. Orr for the ACLU of Illinois. They are joined by Emily Nicklin, Jordan M. Heinz, Amy Crawford and Kate Guilfoyle of Kirkland & Ellis LLP in Chicago.

From Equality Illinois:

CHICAGO — Equality Illinois agrees with Judge Sophia Hall, who ruled today that the Illinois court case challenging the state ban on same-sex marriages should continue, and believes the ruling creates greater urgency for the Illinois House to act on the freedom to marry when it returns to Springfield next month.

"Today's decision by the court underscores why the lawmakers must do their job and pass the marriage bill. State Representatives in the land of Abraham Lincoln should not wait for the courts to act while tens of thousands of couples are waiting for their full rights," said Bernard Cherkasov, CEO of Equality Illinois, the state's oldest and largest advocacy organization for lesbian, gay, bisexual and transgender Illinoisans.

"After the U.S. Supreme Court ruled this summer that same-sex married couples are entitled to all the 1,138 federal rights and benefits granted under marriage, it became even clearer what Illinois couples were being denied by not being able to marry, and the quickest path to remedying that inequity is for the legislature to act in a few weeks," Cherkasov continued.

"We are pleased that the dismissal arguments put forth by marriage opponents were rejected by the judge and the case will continue," he said. "By their very nature, however, court cases require months to be decided, followed by the expected appeals. The legislature has the power to do the right thing right now and respect all loving, committed couples in Illinois who desire the protections, benefits and recognition that only marriage brings by passing the Religious Freedom and Marriage Fairness Act this fall."


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