JURIST Guest Columnist Sara Benson of the University of Illinois College of Law discusses State Attorney General Lisa Madigan’s interpretation of the statute recently passed by the Illinois Legislature allowing same-sex marriage …

Last summer the US Supreme Court issued an opinion striking down part of the federal Defense of Marriage Act (DOMA) in the Windsor [PDF] case. The Windsor decision struck down DOMA, but it did not tell the government how to interpret federal regulations related to marriage and the relationship between civil unions, same-sex marriage, and “traditional” marriage. These questions were answered by the Illinois legislature on November 5, 2013, when it passed Public Act Number 98-597 amending the Illinois Marriage and Dissolution Act to allow same-sex couples to marry in Illinois as of the effective date of June 1, 2014. However, that was not the end of the story in Illinois. Multiple couples sought a marriage license prior to June 1 in Lee v. Orr [PDF] due to the terminal illness of one of the marriage applicants in each coupling. Those marriage licenses were granted prior to the effective date of the statute by the US District Court for the Northern District of Illinois in Cook County. The court noted, however, that the right to marry should not simply be extended to the parties in the case, who would be unable to wait to marry due to illness, but rather to all same-sex couples wishing to marry (at least in Cook county) because, in the words of Martin Luther King, Jr., “the time is always ripe to do right.” Judge Sharon Johnson Coleman noted, however, that her opinion did not extend to other areas outside of Cook County due to the “posture of the lawsuit.”

Nevertheless, Lisa Madigan, the State Attorney General, noted in a letter [PDF] to the Macon County Clerk, that every clerk would have to decide for him or herself whether to permit individuals seeking a marriage license to obtain one. She noted, however, that such couples might face costly litigation of the type faced in Lee if clerks refuse to grant marriage licenses to willing applicants. Additionally, she stated that her office would “argue that it is unconstitutional to deny marriage licenses to same-sex couples” should this type of litigation indeed arise.

Although this issue poses a conundrum regarding the role of the local State’s Attorney, the local County Clerk, and the State Attorney General, I’d like to focus primarily on the conflict between Madigan’s interpretation and the effective date of the statute as set by the Illinois legislature. Is the kind of action taken by Madigan likely to be repeated frequently? I would answer no. Madigan’s answer was guided by Coleman’s opinion. Surely where an issue of such fundamental importance to our lives as marriage is at hand, individuals should not have to wait to marry, as they have all waited long enough. The Lee court noted, appropriately, what the legislature had already attempted to rectify: it is unfair and unconstitutional to allow opposite sex couples to marry while preventing same sex couples from marrying. If that is true, then there is no way to enforce the old, unconstitutional law, and couples of any sex should be permitted to marry immediately throughout the entire state. This issue is such an important one and of such constitutional import that marriage was recognized as a fundamental right as early as 1888 by the Supreme Court. Although the Lee case involved couples where one party was seriously ill, it would be unfair to force every single couple to wait until June 1 or litigate, as Coleman pointed out. What if the couple is about to give birth to a child? What if they are on the cusp of adoption? What if they are just too poor to take time off from work to travel to Cook County to obtain a license there? All of these issues could drag individual County Clerk’s to court and waste additional time and money. What is the down side of issuing the marriage licenses early? Probably nothing. What is the downside of refusing to issue the licenses? Costly lawsuits. As such, Madigan made the appropriate choice.

Sara Benson is lecturer in law at the University of Illinois College of Law. She teaches legal writing and serves as the faculty advisor to the Moot Court Program. She earned her J.D. from the University of Houston Law Center where she graduated magna cum laude and served as a notes and comments editor for the Houston Law Review. She earned her LL.M. from Boalt Hall School of Law at the University of California, Berkeley.

Suggested citation: Sara Benson, Same-Sex Marriage in Illinois: A Conflict of Powers or A Pragmatic Choice?, JURIST – Forum, Apr. 5, 2014, http://jurist.org/forum/