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Analysis: Illinois judge allows claims that the state marriage ban violates due process and equal protection to move forward

Darby/Lazaro LGBT Legal Cases Marriage equality Marriage Equality Trials

IllinoisOn Friday, an Illinois judge allowed the challenge to the state’s same-sex marriage ban to move forward. Reports on Friday were short and mostly referred to the fact that the case will be allowed to proceed. Lambda Legal, who filed one of the cases in Illinois, wrote a blog post Friday with a few more details:

Today a judge denied motions to dismiss our cases seeking the freedom to marry for same-sex couples in Illinois. We’re going to have our day in court to fight for dignity and equality for the 25 plaintiff couples represented in the lawsuits brought by Lambda Legal and the American Civil Liberties Union.

Although the court dismissed the sex discrimination and other claims specific to the Illinois constitution, the plaintiffs can obtain everything they seek — a declaration that the marriage ban is unconstitutional and an order requiring the state to issue marriage licenses to same-sex couples — through the claims that remain.

EqualityOnTrial has the opinion now, so this post is intended to be an analysis of the opinion, detailing which claims were allowed by the judge to move forward, and which were rejected.

Some of the defendants had filed a motion to dismiss all the claims in the case, and the opinion is a rejection of many of them, based on the fact that the plaintiffs have “alleged sufficient facts” for the claims. This is not a decision on the merits of the claims.

More below the fold…

According to the judge, the plaintiffs alleged a violation of (1) equal protection of the laws based on sexual orientation, (2) due process, (3) equal protection of the laws based on sex, (4) privacy, and (5) a prohibition against special legislation in the state. Ultimately, the judge dismissed the sex discrimination claim along with the privacy and special legislation claims, but allowed the others to proceed.

Equal Protection claim based on sexual orientation

The defense against the equal protection claim for sexual orientation is nothing new for those who have followed the same-sex marriage challenges. The defendants had argued that the marriage ban’s language is neutral on its face, and even if it isn’t, there are rational bases for upholding it, such as (1) protection of traditional marriage, (2) procreation within marriage and a child having both a biological mother and a father.

First, regarding the purported “facial neutrality” of the law, the defendants argued to the court that a gay person and a straight person are both equally prohibited from marrying someone of the same sex and both may marry someone of the opposite sex. The opinion points out, though, that Supreme Court cases don’t distinguish between status and conduct when it comes to sexual orientation, and marrying someone of the same sex is closely related to being gay. Therefore, pointing to Lawrence v. Texas (the majority and concurring opinions) and Christian Legal Society v. Martinez, the judge sided with the plaintiffs’ claim that the ban was designed not to be neutral, but instead to affect a class of people based on their sexual orientation.

The plaintiffs had further argued that rational basis isn’t the correct standard of review, and a heightened level of judicial scrutiny should apply. Citing the familiar cases and evidence, the court suggested that the plaintiffs have alleged sufficient facts to determine that a heightened level of scrutiny is warranted, so the argument can move forward.

Due Process claim

The court also allowed the plaintiffs’ due process claim to go forward. The defendants, the opinion noted, had cited to a number of cases involving the fundamental right to marry. The defendants pointed out that all those cases involved opposite-sex couples only. But the court noted that “[o]f course, the courts in those cases [from the 19th and 20th centuries] were not presented with circumstances involving same-sex couples.[...]Cases involving same-sex couples, who claim the fundamental right to marry, have only arisen recently.” The plaintiffs had cited the familiar list of Supreme Court cases involving either the right to marry or the right to same-sex intimacy, and they also had cited cases specific to Illinois in which the state constitution applied strict judicial scrutiny to a marriage regulation based on “freedom of choice.”

Because the facts alleged appear to be sufficient to make a claim that same-sex couples’ due process rights are being violated, the opinion suggests that claim can move forward as well.

Equal Protection claim based on sex

The plaintiffs’ equal protection claim based on sex was rejected. The defendants argued that the ban is facially neutral in terms of sex: it doesn’t single out men or women as a class. The judge rejected plaintiffs’ arguments pointing to Illinois supreme court cases involving sex/gender classifications. The opinion suggests that the classification is based on sexual orientation, not sex, because men and women are prohibited from marrying someone of the opposite sex. (Earlier in the opinion, the court noted that the ban was designed to affect conduct closely related to sexual orientation.)

Right of privacy claim

The Illinois constitution contains a clause that specifically addresses the right to privacy, unlike the United States Constitution, in which the right to privacy is found in the Due Process Clause. The court rejected the plaintiffs’ claims under that clause. They pointed to state supreme court decisions that construe the clause as one related to informational and document privacy, not to marriage, abortion or similar issues. The court’s opinion suggests that there is “no legal support” to extend the clause to this type of case.

Special Legislation claim

This clause of the Illinois constitution relates to the prevention of passage of special or local laws by the Illinois General Assembly. The plaintiffs argued that even though the rational basis test is applicable to this claim, there’s no rational basis for the ban. Defendants had argued that there are rational bases, the same ones that apply to equal protection claims here. But the court noted that neither party addresses how the marriage ban is a “special benefit” that was passed “in favor of” a group, a standard that’s necessary for this claim to move forward. Since there were no facts alleged to suggest that the marriage ban is a special benefit, that claim was dismissed.

In summary, the due process claim will be heard in court, as will the plaintiffs’ claim that the marriage ban violates equal protection of the laws based on a classification of sexual orientation. The court granted the defendants’ request to dismiss the other claims. But as Lambda Legal suggested, the plaintiffs can win everything they seek if the court ultimately decides that the marriage ban violates due process or equal protection.

Thanks to Kathleen Perrin for this filing

Darby v. Orr/Lazaro v. Orr opinion:

12-CH-19718 Decision on Motion to Dismiss by Equality Case Files

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