*This is reprinted from the ISBA Human Rights Newsletter
To the delight of many, the past few years have marked an upheaval in equal-protection jurisprudence regarding same-sex marriage. In state after state, judges and legislators have knocked down the old legal barriers that prevented gay couples from marrying. But despite the strong political momentum behind this opening-up of marriage, the law must still be respected. And by respected, I mean followed.
Regardless of how much applause a government actor's decision might receive from same-sex couples, his or her failure to operate within the confines of the law could end up harming the very same-sex couples for whom he or she advocates. An example of this potential back-firing may came from Champaign County, where Republican County Clerk, Gordy Hulten, began issuing marriage licenses to same-sex couples on February 26, 2014, more than three months before Illinois' ban on same-sex marriages was set to expire. Before going into the details of the Champaign County situation, a little background.
On November 21, 2013, Governor Quinn signed into law the Religious Freedom and Marriage Fairness Act, which explicitly allows for same-sex marriage in Illinois. However, by its own terms, the bill will not go into effect until June 1, 2014. Until that time, as far as the Illinois Compiled Statutes is concerned, the existing ban on same-sex marriage still stands.
On November 25, 2013, U.S. District Court Judge Thomas Durkin granted a preliminary injunction against Cook County Clerk David Orr, requiring Orr to immediately issue marriage licenses to the plaintiffs, a terminally ill woman and her same-sex partner.
On February 21, 2014, U.S. District Court Judge Sharon Johnson Coleman granted summary judgment in favor of plaintiffs against Orr, finding that Illinois' existing ban on same-sex marriage violated the equal protection clause of the Fourteenth Amendment. Lee v. Orr, 13-CV-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014). The court framed the lawsuit, as follows:
"There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs' fundamental right to marry. Indeed, the defendant [Cook County Clerk David Orr] and intervenor [Attorney General Lisa Madigan] have joined in plaintiffs' motion, with the caveat the defendant David Orr is bound to follow the law in Illinois. Since the parties agree that marriage is a fundamental right available to all individuals and should not be denied, the focus in this case shifts from the 'we can't wait' for terminally ill individuals to 'why should we wait' for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right." Lee v. Orr, 13-CV-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014)
However, the court included an important caveat in its order: "Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment's Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit." In other words, the ban on same-sex marriage still stands in every Illinois county other than Cook until June 1, 2014. It's also important to note that no government party in Lee v. Orr argued that the ban was constitutional, and the court's finding that there is "no dispute" that the ban is unconstitutional was based upon concessions.
Coming back to Champaign County, County Clerk Hulten's decision to issue marriage licenses to same-sex couples was based upon the Federal District Court's decision in Lee v. Orr, which by its express terms applied only to Cook County. Hulten consulted with the Champaign County State's Attorney before concluding that the rationale of Orr applied equally to all Illinois counties. Lake County Clerk Willard Helander recognized the limitation of Orr, and concluded that he simply did not have the authority to issue marriage licenses to same-sex couples.
Here's the problem with Hulten's decision: It might be wrong. Not wrong in terms of policy, but wrong in terms of the law. Hulten's decision to issue marriage license to same-sex couples before June 1, 2014, is basically a gamble that the decision of Lee v. Orr is correct. And that kind of gamble is a problem because people rely on marriage licenses. They buy homes together, open bank accounts, and adopt children. On the day of Hulten's announcement, three same-sex couples applied for marriage licenses in Champaign County. If one of those couples has a falling out in years to come, what's to prevent one of them from arguing that the marriage is void? After all, no binding legal authority was in place to justify the issuance of their marriage license. On the contrary, the only binding law in place at the time expressly banned the marriage.
For those same-sex couples who got married in Champaign County before June 1, 2014, were the extra few months of marriage really worth the risk that the marriage might be a legal nullity? Sure, it's possible—perhaps even likely—that a court in a future case would declare the Illinois marriage ban retrospectively unconstitutional as to all counties, thus securing the legitimacy of the same-sex marriage licenses issued outside of Cook County while the ban was in place. But until that happens, I hope that the Champaign County couples who got married between February 26 and June 1, 2014, are aware that the legal foundation of their marriage is built on the non-binding constitutional interpretation of the County Clerk. As such, the marriage's legal validity is much more uncertain than that of same-sex marriages occurring after June 1, 2014. Because this possible invalidity could have real legal consequences down the road, Hulten's well-meaning gesture of giving same-sex couples an extra few months of marriage might end up doing more harm than good.