Judge Allows Lawsuit Challenging Illinois Gay Marriage Ban To Go Forward

September 28, 2013 2:07 a.m.

A judge in Illinois’s Cook County ruled Friday that a lawsuit against the state’s same-sex marriage ban can proceed.

Cook County Judge Sophia Hall, the judge presiding over the case, denied two of five counts of a defense motion to dismiss the lawsuit. The ruling is the latest development in the state’s ongoing struggle over same-sex marriage.

Specifically, Hall dismissed three of five counts of the motion to dismiss the case, according to the Chicago Tribune. Those counts claimed that the state’s definition of marriage as between one man and one woman violates the Illinois equal protection clause (under violations of discrimination based on sex), right to privacy and the special legislation clause of the Illinois Constitution, which, according to the Tribune, says the state’s General Assembly shouldn’t pass a “special or local law when a general law is or can be made applicable.”

The remaining counts, which allow the lawsuit to proceed, said that the ban violates the due process rights of same-sex couples and that, under Illinois’s equal protection clause, discriminates against couples based on sexual orientation.

Paradoxically, both the plaintiffs and the defendants in the lawsuit hailed Hall’s ruling as a win.

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“We’re glad for the partial dismissal,” Thomas More Society lawyer Peter Breen said according to the Tribune. The Thomas More Society is a public interest legal group that is defending the state’s gay marriage ban. Breen added that Hall’s ruling “gives us the opportunity to make our case that marriage between a man and a woman has great benefits, particularly for children. The case will proceed, but this will allow us to narrow our focus.”

“This is a fantastic day for the 25 couples who are plaintiffs in these two lawsuits, and also for the lesbian and gay couples and their children around the state,” Camilla Taylor, one of the plaintiffs’ lawyers in the lawsuit, said. Taylor is also an attorney for Lambda Legal, which, along with the American Civil Liberties Union, is a litigating on behalf of the plaintiffs.

Lambda Legal and the ACLU have filed a motion for summary judgement. Hall is reviewing the motion and there will be a hearing on it on Oct. 8.

The plaintiffs in the case are 25 same-sex couples who are challenging the Illinois Marriage and Dissolution of Marriage Act. That act prohibits marriage “between 2 individuals of the same-sex.” Of the 25, 23 of the couples are trying to get married in the state and the other two want the state to recognize their marriages, which took place in Canada.

The lawsuit actually started as two lawsuits that eventually were combined into one. The couples in the lawsuit seeking to get married in Illinois tried to get marriage licenses from the Cook County Clerk but were rejected. The couples subsequently filed lawsuits which eventually were combined into one. Both Illinois Attorney General Lisa Madigan (D) and the Cook County state attorney said they agreed with the original lawsuits soon after they were filed.

Illinois’s gay marriage law has been under siege for a while now. Earlier in the year Illinois GOP Chairman Pat Brady resigned from his seat in response to pressure from Illinois Republicans following Brady expressing support for same-sex marriage. Brady’s resignation came in the midst of the state legislature’s consideration of a bill that would have legalized gay marriage. That bill passed the Illinois State Senate before stalling in the state’s House of Representatives. President Barack Obama himself called on his homestate’s legislature to pass the bill.

More recently Brady was hired to lobby lawmakers in the state legislature to legalize same-sex marriage.

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