Illinois is now “ground zero” in the ongoing battle to preserve traditional marriage. On May 30, 2012, the American Civil Liberties Union and Lambda Legal Defense and Education Fund, Inc., filed separate lawsuits in the Cook County Circuit Court (which includes the City of Chicago) on behalf of a number of same-sex couples challenging the Illinois law that reserves marriage to opposite-sex couples (Illinois does, however, already recognize same-sex civil unions). The lawsuits, which raise only state, not federal, constitutional claims, name a single defendant, David Orr, the Cook County Clerk, who has the responsibility and duty of issuing marriage licenses and registering the solemnization of marriages after they have been performed. Mr. Orr, a longtime advocate of same-sex marriage, has announced his support for the plaintiffs’ lawsuits, has expressed his opinion that the failure to recognize same-sex relationships as marriages is unconstitutional, and has stated that he expects his counsel, Anita Alvarez, the State’s Attorney of Cook County, to support his position, which she has now done. She has filed an answer in each case admitting that the reservation of marriage to opposite-sex couples violates the equal protection guarantees of the Illinois Constitution.
In the meantime, Lisa Madigan, the Attorney General of Illinois (and daughter of Michael Madigan, the powerful Speaker of the Illinois House of Representatives), has filed petitions to intervene in both cases, not to defend the existing law, which one would normally expect the Attorney General to do when the constitutionality of a state statute is drawn into question, but to attack the law. At this point, there is no one in either case who is willing to defend the law. A lawsuit in which both sides support the same result is, to say the least, odd.
An uncharitable mind might be tempted to believe that these lawsuits are collusive, i.e., that they were brought with the understanding (express or implied) that neither the defendant (Mr. Orr), nor his attorney (Ms. Alvarez), nor the Attorney General (Ms. Madigan) would defend the challenge, resulting in a judgment striking down the statute and enjoining its enforcement. That belief would be reinforced by the fact that many of the plaintiff same-sex couples reside in counties other than Cook, yet did not file their lawsuit in their own counties. As a result, the Illinois law prohibiting same-sex marriage may fall without a single shot being fired in its defense. And if no one defends the law, then it follows that no one is in a position to appeal a judgment invalidating the law. So same-sex marriage may come to Illinois without the Illinois Supreme Court ever having had an opportunity to rule on the constitutionality of the existing marriage law.
In a further irony, because Mr. Orr was sued only in his capacity as Cook County Clerk, and not also as a representative of a class of Illinois county clerks, an unappealed judgment striking down the marriage statute would bind only him, not any other county clerk in Illinois (there are 102 counties in the State). As a consequence, Illinois may have not one, but two sets of marriage laws, one for Cook County, where same-sex couples could marry, and another for the rest of the state, where they could not. That is obviously an intolerable situation that cries out for judicial intervention at the highest level. It may be hoped that one or more individuals or organizations with a stake in this fight will seek to intervene to defend the law.
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For now, it seems worthwhile to examine the merits of the two lawsuits. In a Chicago Tribune op-ed piece aptly titled “Marriage on the rocks?” University of Chicago Law Professor Geoffrey Stone heralds the lawsuits filed by the ACLU and Lambda and predicts that the plaintiffs will prevail in their challenge to the Illinois marriage law. Professor Stone, however, presents a very distorted and one-sided view of the legal and political issues surrounding the same-sex marriage debate, and the lawsuits he welcomes are meritless.
The ACLU and Lambda raise four principal arguments against the state marriage law. First, they argue that reserving marriage to opposite-sex couples violates the “fundamental” right to marry the person of one’s choice, which right is supposedly protected by the liberty language in the state due process guarantee (art. I, § 2). But, with the exception of a decision of the California Supreme Court four years ago (In re Marriage Cases), which was overturned by Proposition 8, and, arguably, the Massachusetts Supreme Judicial Court’s decision in Goodridge v. Dep’t of Public Health (2003), which redefined marriage to include same-sex relationships, no state or federal reviewing court has ever held that the substantive due process right to marry includes the right to marry someone of the same sex. The right to marry has always been understood to be limited to marrying someone of the opposite sex. That is clear from a series of Supreme Court decisions tying the right to marry to the procreation of children, see, e.g., Loving v. Virginia (1967), Zablocki v. Redhail (1978), Turner v. Safley (1987). In a very old case, Maynard v. Hill (1888), the Court characterized the institution of marriage as “the foundation of the family and of society, without which there would be neither civilization nor progress.” So much for the “fundamental” right argument.
Second, the ACLU and Lambda argue that reserving marriage to opposite-sex couples denies same-sex couples the equal protection of law guaranteed by art. I, § 2 of the Illinois Constitution. Presumably, this argument, as it is developed by the plaintiffs (to date, only the complaints have been filed), will claim that classifications drawn on the basis of one’s sexual orientation should be subject to the same rigorous standard of judicial review that applies to classifications based on race (strict scrutiny) or gender (intermediate scrutiny). There is a major difficulty with this argument, however.
In interpreting the state equal protection guarantee, Illinois courts follow federal precedents interpreting the Equal Protection Clause. But there is no Supreme Court decision subjecting classifications based on sexual orientation to the standards that apply to classifications based on race (strict scrutiny) or gender (intermediate scrutiny). In Romer v. Evans (1996), the Supreme Court struck down Colorado’s Amendment 2, which barred special legislation protecting gays and lesbians, under the rational basis standard of review. But the narrow and focused prohibition of same-sex marriage cannot be equated with the breadth and scope of Amendment 2. And every federal court of appeals to have considered the issue has concluded that classifications based on one’s sexual orientation are subject only to the “rational basis” standard of review.
The reservation of marriage to opposite-sex couples easily passes that standard. Extending marriage to same-sex couples would not promote either of the two primary purposes for which society recognizes the institution of marriage—providing a stable environment for children procreated by heterosexual sexual activity and providing the benefits of dual-gender parenting for the children so procreated.
Third, the ACLU and Lambda argue that the reservation of marriage to opposite-sex couples violates the privacy rights of same-sex couples under art. I, § 6 of the state constitution. The privacy language has been applied only to privacy of personal information and evidence gathering by law enforcement officials; it has never been applied to conduct. Moreover, it is difficult to understand how the right of privacy, which is a shield to protect persons from unwarranted government intrusion into their private affairs, can be converted into a sword for demanding public recognition of a private relationship.
With the exception of the California Supreme Court’s decision in In re Marriage Cases, no state or federal reviewing court has upheld a privacy-based challenge to a law restricting marriage to opposite-sex couples, and several courts, including the Arizona Court of Appeals, Standhardt v. Superior Court (2003), the Hawaii Supreme Court, Baehr v. Lewin (1993), and the Washington Supreme Court, Andersen v. King County (2006), have rejected such challenges. Indeed, in one of the cases advocates of same-sex marriage frequently cite, Lawrence v. Texas (2003), the Supreme Court, in striking down the Texas sodomy law, stated that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
Fourth, the ACLU and Lambda argue that the reservation of marriage to opposite-sex couples violates the prohibition of sex discrimination under art. I, § 18 of the state constitution. But that prohibition has no application to a law that treats men and women equally. Neither a man nor a woman may marry someone of the same sex; both may marry someone of the opposite sex. With the exception of a two-judge plurality opinion of the Hawaii Supreme Court, Baehr v. Lewin (1993), which has been described by one constitutional law scholar as one of the ten worst state supreme court decisions of all time, no state or federal reviewing court has accepted the “sex discrimination” argument against marriage laws. Such arguments have been rejected by the California Supreme Court, In re Marriage Cases (2008), the Kentucky Supreme Court, Jones v. Hallahan (1973), the Maryland Court of Appeals, Conaway v. Deane (2007), the Minnesota Supreme Court, Baker v. Nelson (1971), the New York Court of Appeals, Hernandez v. Robles (2006), the Vermont Supreme Court, Baker v. State (1999), the Washington Supreme Court, Andersen v. King County (2006), the Washington Court of Appeals, Singer v. Hara (1974), the District of Columbia Court of Appeals, Dean v. District of Columbia (1995), four intermediate courts of review in New York and three federal district courts, Wilson v. Ake (2005), Smelt v. County of Orange (2005), and In re Kandu (2005).
Professor Stone parrots the public opinion polls purporting to show that a majority of Americans now support same-sex marriage, but those polling results have not shown up in the only poll that counts, the one on election day. Thirty states, most recently North Carolina, have amended their constitutions by popular vote to define marriage as the union of one man and one woman. Stone’s only explanation for these results is that “single-issue, single-minded voters, well-funded by religious organizations and driven by religious fervor, can effectively block the will of the majority.” Thus, by a remarkable feat of verbal prestidigitation, tinged by an anti-religious prejudice, Stone manages to turn a majority vote into a minority point of view.
The fact that advocates of same-sex marriage uniformly oppose public votes on state constitutional amendments that would define marriage as a union of a man and a woman is telling evidence that they do not believe what they say. If advocates of same-sex marriage believe that the people of Illinois are now prepared to accept same-sex marriage, let’s have the General Assembly put the issue on the November ballot and we’ll see who wins. Same-sex marriage should not come in the back door, via an arguably collusive lawsuit in which no one charged with the responsibility of enforcing the law actually defends it.