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A push for ‘marriage equality’

April 25, 2009
Phil Miatkowski, a sophomore at Lake Forest College, works on his laptop in his dorm room in May. Miatkowski keeps his friends informed about legislation to legalize civil unions in Illinois.

Phil Miatkowski, a sophomore at Lake Forest College, works on his laptop in his dorm room in May. Miatkowski keeps his friends informed about legislation to legalize civil unions in Illinois.

SPRINGFIELD — Hundreds of state laws unacceptably discriminate against the gay community, according to one Chicago lawyer who hopes the winds of change may soon sweep through Illinois.

James P. Madigan is the interim executive director of Equality Illinois, a gay-rights advocacy group pressing for what it calls ”marriage equality” — legal recognition of marriage rights for gay couples.

Madigan’s basis for critiquing Illinois law is perhaps one of the most basic principles of that law — equal protection.


By Patrick T. Yeagle
Special to the Law Bulletins

Article 1, section 2 of the Illinois Constitution provides that ”No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.”

Banning same-sex marriage and civil unions, Madigan says, specifically denies gay couples the right of equal protection. According to Madigan, the Illinois Human Rights Act prohibits discrimination in housing, employment, real estate transactions and credit access based on sexual orientation, but those protections do not extend to other areas of everyday life.

”What you have in Illinois is this circumstance where we say that we’re not going to discriminate anymore based on sexual orientation, but hundreds of Illinois laws are made accessible specifically by the vehicle of marriage,” said Madigan. ”By excluding gay people from that and not creating any sort of structure for them, it means they are essentially shut out from all of those facets of Illinois law.”

Madigan said he hopes to change the marriage situation in the state the hard way — by pushing legislation to allow gays the same legal rights and privileges enjoyed by straight married couples.

Leading the charge in the legislature is Rep. Greg Harris, D-Chicago, one of two openly gay members of the General Assembly. Harris worked with Madigan to craft House Bill 2234, which would create the Illinois Religious Freedom Protection and Civil Union Act, attempting to balance the beliefs of religious groups with the desire to share in the rights of married people. The bill specifically absolves religious groups of any requirement to solemnize or officiate a civil union.

Harris said that while full marriage equality is the ultimate goal, there still is some discomfort in the general population about calling a same-sex marriage an actual marriage because of religious beliefs.

”But,” Harris continues, ”people very much seem to believe in the basic fairness issue and giving people certain contractual rights.”

Harris’ bill would put civilly united couples — same- or opposite-sex — on the same legal footing as married couples by giving them the same legal obligations, responsibilities, protections and benefits as spouses, whether derived from statute, administrative rule, policy, common law or another source.

The measure, if passed, would bring Illinois in line with four other states that officially recognize gay couples’ rights to legally share property, finances, inheritance and health care.

”When I talk to my constituents, when I talk to people around the state, it’s very clear that there are real equity concerns here,” Harris said. ”People are being denied even the simplest of benefits, like being able to go to a hospital room with a partner or participate in health care decision-making because of the status of Illinois law currently.”

The equal protection argument gained significant momentum recently when the Iowa Supreme Court ruled that a law in that state specifically banning gay marriage violated the equal protection clause of the state’s constitution.

”We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective,” the seven-justice court concluded in Varnum v. Brien. ”The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification.”

Harris said the decision represented a nationwide movement in which ”basic rights of fairness are being extended to all citizens.”

”I’m thrilled,” Harris said, expressing hope that the decision would strengthen his own equal protection argument. ”It certainly doesn’t hurt it.”

But Harris is working through the legislative process, not the judicial process, a deliberate choice on his part.

”It may be a little bit more time-consuming, but then no one will be able to ever say, ‘Oh, it was just activist judges,’ or whatever,” Harris said.

And Harris knows how difficult the fight may be.

He intentionally separated civil unions from same-sex marriage, placing each on distinct bills in the hope that the former would not be bogged down in the debate over the latter.

To some extent, the strategy has paid off. Harris’ same-sex marriage bill, HB 178, remains relegated to the House Rules Committee, a catch-all for bills of which House leadership isn’t particularly fond, while the civil-unions bill has advanced as far as third reading in the House as of early April.

Even so, civil unions in Illinois face opposition.

The Alliance Defense Fund, a conservative legal organization based out of Scottsdale, Ariz., is opposed to both civil unions and same-sex marriage. ADF senior legal counsel Austin Nimocks dismisses out of hand the equal protection argument, instead saying that children raised by same-sex couples are deprived of the defined gender roles played by a mother and father.

”I think that Rep. Harris and his supporters of civil unions miss the point,” Nimocks said. ”Marriage was not created for adults. Marriage was created for children, and so when we want to talk about rights and equal rights, the first discussion needs to be about kids.”

Reacting to the Iowa Supreme Court decision, ADF senior legal counsel Doug Napier said the high court had ”simply disregarded the overwhelming majority of Iowans.”

”It’s very interesting when you read the opinion, you see that the Iowa Supreme Court gives lip service to the idea that all political power is inherent in the people,” Napier said. ”And yet [the court] then looks at the constitution which was put in place by the people, and the court would say belongs to the people, and then says ‘yeah, but you’ve got to read this in light of changing times.’ And the people haven’t consented to that.”

But the Iowa high court addressed that issue in its unanimous decision, holding that a ”statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.”

If the average Iowan opposes same-sex marriage, as Napier suggests, the state could pass a constitutional amendment specifically banning the practice if both the Iowa legislature and a majority of Iowa’s voters support it. That is not unheard of — the supreme courts of Hawaii and California have each ruled in favor of allowing same-sex marriages, but subsequent constitutional amendments reinstated the ban in both states.

Regardless of what happens in Iowa, another recent development has set a precedent that is hard to ignore.

In early April, Vermont became the first state to pass legislation legalizing same-sex marriage. That state’s House and Senate even overrode a gubernatorial veto of the measure, putting Vermont in the company of Connecticut, Massachusetts and Iowa, whose allowances of same-sex marriage are the results of court decisions. Connecticut’s legislature recently voted to legalize same-sex marriage, affirming the decision of that state’s high court.

”Obviously I think every positive step like this helps set the tone and set the stage better here in Illinois,” Harris said in response to Vermont’s legislative move, while cautioning that a victory in other states is not the same as a victory here.

”Fellow [House] members look at what other states are doing, but also look at the fact that we’re here to serve Illinois,” Harris said. ”What happens in Vermont or Iowa or California is interesting and possibly instructive, but we still are Illinois legislators and have to listen to the people back home.”

Harris said he hopes HB 2234 has the support to pass when he calls the bill for a vote this session, but he does not take anything for granted. If civil unions are adopted in Illinois, he may press for full same-sex marriage, Harris says, but he would most like to see such recognition at the federal level.

”I think that will come with time,” Harris said. ”What period of time that will be, that’s hard to say. People will see that this is a good thing.”

One Comment leave one →
  1. Andrew Almasi permalink
    April 27, 2009 3:18 pm

    It seems to me that it is time that we abandon the legal concept of marriage altogether. I “get” that marriage has religious connotations, that there are traditions that limit that type of union to a man and a woman. And, my response is that we abandon marriage as a legal concept and leave it as only a religious construct.
    In the true sense of separation of church and state make the only legally recognized state of union between two people to be a civil union. A civil union, being a new concept cannot and does not effect or go against a “marriage” and all its religious connotations or socities traditions. You can petition a church or other religious entity for a marriage. You petition the state only for a civil union.
    This also addresses the idea that an elderly couple can marry and yet not have a civil union, thereby losing their limited benefits.
    It allows any two people to form a civil union, under the same laws that we now employ for marriage and allows all people to share their job benefits with another regardless of sex, period, as long as they agree to be bound by the so-called legal confines of a civil union.
    Will someone tell me how a purely civil union, untouched by any religious connotation offends religion other than by their intolerance?

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