Gray-Ewert ruling may impact Illinois same-sex marriage start date

Fri. November 29, 2013 4:17 PM

eric j. schwab and leon i. finkel

photo credit // berger schatz law firm
Chicago, IL - By Eric J. Schwab and Leon I. Finkel

On Wednesday, November 20, 2013, Illinois Governor Pat Quinn signed the "Illinois Religious Freedom and Marriage Fairness Act," which institutes marriage equality in Illinois but does not become effective until June 1, 2014.

Two days later, on Friday, November 22, 2013, Vernita Gray and Patricia Ewert filed a lawsuit in federal court, seeking a court order permitting them to get married immediately under the law. Their reason was compelling: Gray was suffering terminal cancer and likely would not survive until the law took effect. Without the court's help, Gray and Ewert knew they might never have a chance to be legally married.

The following Monday, November 25, 2013, U.S. District Judge Thomas M. Durkin issued the order, requiring the Cook County Clerk to issue Gray and Ewert a marriage license as soon as they satisfied all the legal requirements, and, once the marriage was solemnized, to register it "as is presently required for all other marriages." Thus, for Gray and Ewert at least, not only the right but the ability to marry arrived in Illinois this past week. In fact, the couple was married in a private ceremony in their home on Wednesday, November 27.

Judge Durkin's swift action to remedy Gray and Ewert's tragic predicament definitely packed an emotional wallop, and was widely reported in local and national news stories. The pleadings that Gray and Ewert filed with their lawsuit are compelling: two community activists who have been in a committed relationship for five years and engaged for four years, and who were among the first Illinois couples to participate in a civil union ceremony in 2011. The pleadings also tell the poignant story of Gray's battle with breast cancer since 1996, involving multiple surgeries and setbacks, until finally she and Ewert learned, several months ago, that Gray had only a few months left to live.

The Illinois General Assembly passed Senate Bill 10, the marriage equality bill, in early November. However, because the bill was passed after May 31, the Illinois Constitution does not permit it to become effective before June 1 of the following calendar year. But that would likely be too late for Gray and Ewert, denying them forever the chance to enjoy the dignity of marriage. Also, just as importantly, the law's deferred enactment would deny them access to the federal benefits and protections conferred by State-recognized marriage -- including Ewert's right to obtain medical leave to care for Gray, their right to be together in hospitals, and also significant survivor benefits relating to estate taxes and social security benefits.

In bringing their lawsuit in federal court, Gray and Ewert were supported by the Lambda Legal Defense and Education Fund, the ACLU, and private pro bono attorneys. Their lawsuit argued that current Illinois laws banning same-sex couples from getting legally married were presumptively unconstitutional under the recent U.S. Supreme Court ruling, Windsor v. United States. Further, they argued that the State of Illinois had "no conceivable interest" in delaying Gray and Ewert's right to marry immediately, since the Illinois legislature had already passed a law repealing the State's ban on same-sex marriage.

Powerfully bolstering Gray's and Ewert's claim, Illinois Attorney General Lisa Madigan filed a memorandum of law in support of their lawsuit. The Attorney General's memorandum surveyed the developments in Illinois law leading to marriage equality, noting that the historically commonplace justifications for banning same-sex marriage had been "greatly undermined" by permitting same-sex civil unions in 2011, and then "expressly disavowed" by the people of Illinois when the legislature passed the marriage equality bill. Further, the Attorney General argued, the judicial deference commonly due to the legislature's judgment as to when a bill should take effect was outweighed by the "urgent circumstances" in Gray and Ewert's case. In light of their unique situation, Attorney General Madigan concluded, permitting them to marry immediately was in the public interest.

Granting Gray and Ewert's request for relief, Judge Durkin issued an order temporarily restraining Cook County Clerk David Orr – who was the nominal defendant in the lawsuit – "from enforcing the statutes excluding lesbian and gay couples from marriage in Illinois." That order enables Clerk Orr to issue a marriage license to Gray and Ewert as soon as they can apply and meet the other legal requirements. Notably, County Clerk Orr is a supporter of marriage equality and issued a statement saying, "My office will comply with the judge's orders and expedite a marriage license to this court – a service already granted to heterosexual couples in similar situations."

Beyond providing immediate (and highly appropriate) relief to Gray and Ewert, the legal ramifications of the federal court's ruling may be limited. Even though the order by law was only a temporary injunction, it certainly could serve as a precedent for other Illinois same-sex couples facing similar life-and-death circumstances.

Just as importantly, Judge Durkin's order bodes well for marriage equality finally being recognized as a constitutional right everywhere, irrespective of whether, or when, state legislatures finally pass marriage equality laws. And the victory for Gray and Ewert – especially in light of the ardent support of the Attorney General's and Cook County Clerk's offices -- powerfully confirms that, in Illinois at least, marriage equality is the law of the land and a constitutionally protected right – even if most other couples still will have to wait until June 1, 2014.

As for that delay, Gray and Ewert's case has also provided impetus for politicians seeking to pass a new bill making the marriage equality act effective even sooner. Governor Quinn has indicated support for such a bill, which was proposed by State Senator Don Harmon (D–Oak Park), but such a bill may not be brought for a vote until 2014 – if at all.

Leon I. Finkel is Managing Partner of Berger Schatz, a prominent Chicago firm since 1987 dedicated exclusively to matrimonial and family law and uniquely qualified to serve the LGBT community with an array of services, such as prenuptial/antenuptial agreements, all aspects of marriage dissolution, child custody matters and family building services including adoption, assisted reproduction, surrogacy and others. Mr. Finkel is a member of the American Bar Association, the Illinois State Bar Association (Family Law Section), and serves as a Fellow and Member of the Board of Managers of the American Academy of Matrimonial Lawyers (Illinois Chapter). He earned his J.D. from Loyola University School of Law, and was recently designated by Illinois Super Lawyers as one of the Top 100 Attorneys in Illinois. Eric J. Schwab, a Berger Schatz Associate, received his J.D. in 2007 from University of Chicago Law School. He also holds a B.A. and Ph.D. from Yale University. He is admitted to practice law in Illinois and before the United States Court of Appeals for the Seventh Circuit and the United States District Court for the Northern District of Illinois.