On May 30, Lambda Legal and the ACLU filed lawsuits against the Illinois Cook County Clerk’s office alleging that the Clerk’s office discriminated against same-sex couples who wanted to get married in Cook County. The Clerk’s office has consistently turned away LGBT couples who requested marriage licenses because though Illinois passed the Illinois Religious Freedom and Civil Union Act (Civil Union Act), the Illinois Marriage and Dissolution of Marriage Act (IMDMA) still states that same-sex marriage is against the state’s public policy. Additionally, the Illinois legislature failed to pass the bill proposing same-sex marriage legalization for Illinois.
Illinois, similar to the U.S., has a conflicting legal perspective on same-sex marriage. The Civil Union Act states that LGBT couples who enter into Civil Unions have the same obligations, benefits, rights and burdens as married straight couples in Illinois. Yet, the IMDMA states that Illinois citizens are against same-sex marriage. Ironically, high-ranking government and judicial authorities across the nation are not in conflict:
- President Obama has denounced the so-called Defense of Marriage act (DOMA) as unconstitutional;
- The First Circuit Court has recently ruled Section 3 of DOMA as unconstitutional;
- The Ninth Circuit rejected an appeal for an en banc hearing on its decision that Prop 8, the California law banning same-sex marriage in California, was unconstitutional as applied to California citizens;
- Illinois Governor Pat Quinn supports same-sex marriage;
- And more than a dozen states also have laws that either allow same-sex marriage or provide a process where LGBT couples can receive substantially similar legal treatment to heterosexual married couples.
However, that is the point – substantially similar is not equal – and all of the United States of America, including Illinois, should provide more. As I explained in an earlier post, the government providing rights to one group and denying those same rights to another group, simply because of an immutable characteristic that certain citizens don’t like is unconstitutional; it is blatant discrimination. Accordingly, DOMA, which defines marriage as a union between one man and one woman as husband and wife, violates the United States Constitution because it validates harmful and irrational discrimination. Furthermore, DOMA places states that allow for same-sex marriages and civil unions in a legislative quagmire, where the states can provide benefits to LGBT couples as long as those benefits aren’t derived through federal programs.
Because of the inherent discord between the individual states, the Legislative Branch, the Executive branch, and the Judicial Branch, increasing speculation is that the issue will reach the U.S. Supreme Court. That may be a good thing or it may be a not-so-good thing.
The composition of the Court is conservative, so if it decides to take the case, it may use historical analysis and side with DOMA’s proponents. A number of members of the Court believe that the Constitution should be interpreted using the values and perceptions of the time in which it was written – the 18th century. I care not to argue the ridiculousness of that rationale. The next scenario is that the Court could decide not to hear the case, reasoning that “Congress has spoken” by passing DOMA. So then, Congress would need to speak again to invalidate the law. Given the tumult in Congress and the blockade against getting anything done, it is unlikely that Congress would even put repealing DOMA on its “to get to” list, let alone its “to do” list. The last scenario is that the Court would take the case and rule in favor of DOMA’s opponents and rule Section 3 or all of DOMA is unconstitutional. Hmmm….
Given that 2 out of 3 scenarios point to a no-win situation for LGBT couples, taking the fight to this Supreme Court is an eyebrow-raiser, at the very least. Still, one can hope that the Court would respect the more than 40 years of precedent, ala Loving v. Virginia, and progression, ala Romer v. Evans, and Lawrence v. Texas. But then, there’s that Citizens United decision, which overturned about 100 years of precedent.