Wednesday, July 10, 2013

DOMA Update: The Fallout Begins



Well, it’s not exactly dogs and cats living together, but the effects of the Supreme Court’s decision in  United States v. Windsor, No. 12-307 (U.S. Sup. Ct., June 26, 2013) (.pdf), which struck down Section 3 of the federal Defense of Marriage Act, are being felt out here on the prairie. Wednesday, the ACLU of Illinois and Lambda Legal Defense and Education Fund, Inc., announced that they’ve filed a motion for summary judgment, based, in part, on the Windsor case, in two consolidated lawsuits pending in the Circuit Court of Cook County, Illinois, challenging state laws that prevent same sex couples from marrying.
The cases, known as Darby v. Orr and Lazaro v. Orr, were filed in 2012 by same-sex couples against Cook County Clerk David Orr, the local public official who issues marriage licenses, asserting that Illinois’ ban on same-sex marriage violates the guarantees of due process, privacy, and equal protection of the laws found in Article I, Sections 2, 6, and 18 of the Illinois Constitution, and the guarantee against “special legislation” found in Article I, Section 13. As an aside, David Orr, who’s kind of a badass, agrees with the plaintiffs and has refused to defend the state laws under attack, as a consequence of which two downstate county clerks were given permission to intervene. Illinois Attorney General Lisa Madigan and Cook County State’s Attorney Anita Alvarez have likewise filed pleadings in support of the plaintiffs. So, yeah, I kind of love Cook County right now.
But, I digress.
At the risk of devolving into lawyerly wonkiness, it’s probably wise to explain, at the outset, what the plaintiffs are doing by filing a “motion for summary judgment.” Motions for summary judgment are appropriate where none of the material facts of the case is in dispute, and the moving party believes that, as a consequence, it is entitled to judgment in its favor as a matter of law. In other words, if the parties essentially agree on the underlying facts, there’s no need for a trial (the primary purpose of which is to resolve factual disputes); rather, the judge, who’s supposed to know the law, can simply apply the law to the facts to determine the outcome of the case. Ordinarily, motions for summary judgment are difficult to win, because to defeat such a motion, the opposing party need only demonstrate that at least one material fact is in dispute (and so a trial is necessary), or that the moving party’s interpretation of the law is incorrect.
In the Darby and Lazaro cases, however, the Supreme Court’s decision in Windsor made the plaintiffs’ case a little easier. If you want to follow along at home, here’s a link where you can download a .pdf copy of the Memorandum of Law in Support of Plaintiff’s Motion for Summary Judgment (that’s fancy Cook County Legalese for “brief,” by the way), which details the plaintiffs’ legal position. Basically, the plaintiffs utilize Windsor in a few different ways. First, they cite Windsor for the proposition that same sex couples have a fundamental right to marry, noting that the Supreme Court said marriage allows gay and lesbian couples to “define themselves by their commit­ment to each other,” “and so live with pride in themselves and their union and in a status of equality with all other married persons.” Windsor, slip op. at 14.
Furthermore, Windsor is central to the Darby and Lazaro plaintiffs’ equal protection arguments. While the plaintiffs’ claims in Darby and Lazaro are grounded in the Illinois Constitution, Illinois follows the same sort of equal protection analysis the federal courts use in determining rights under the Fourteenth Amendment. Consequently, the plaintiffs argue, although Windsor is not controlling, that decision ought to be highly persuasive to the Circuit Court of Cook County when it considers the plaintiffs’ equal protection challenge to Illinois’ ban on same-sex marriage.
So, while the Darby and Lazaro plaintiffs argue that their equal protection claims should be analyzed under “strict scrutiny” applicable to cases involving suspect classifications like race and gender, they cite Windsor for the proposition that Illinois’ denial of equal marriage rights fails even under the more forgiving “rational basis” test used for non-suspect classifications. (See this post for an explanation of the “strict scrutiny” and “rational basis” tests in equal protection cases.) In particular, they note that Windsor, in finding that DOMA did not serve a “legitimate government interest,” rejected the same basic arguments advanced by the defenders of Illinois’ discriminatory marriage scheme. To the contrary, the Supreme Court held, the overtly discriminatory intent underlying DOMA meant that the statute did not serve a legitimate government purpose:
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
Windsor, slip op. at 25-26.
Finally, Windsor plays a pivotal role in demonstrating why Illinois’ denial of equal marriage rights harms gay and lesbian couples – that is to say, why denying them the right to marry is, in fact, discriminatory – because, by invalidating DOMA’s Section 3, the Supreme Court ruled that the federal government must give legally married gay and lesbian couples the same federal benefits it gives legally married straight couples. Illinois currently allows gay and lesbian couples to enter into civil unions, but so far efforts to repeal the same-sex marriage ban have stalled (even though the executive and legislative branches are controlled by the Democrats and the Illinois Senate has already passed marriage equality). After Windsor, the distinction between civil unions and equal marriage rights takes on added significance, because if gay and lesbian couples in Illinois are permitted to marry, they, too, will be entitled to those same federal benefits. Not so with civil unions.
So, while it doesn’t necessarily compel the desired outcome, the Supreme Court’s decision in Windsor may provide just enough additional support to persuade the Circuit Court of Cook County to rule that Illinois’ ban on same sex marriage is unconstitutional. If so, the opponents of marriage equality will scream We told you so! And in this particular instance, they’ll be right.

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