Yesterday afternoon U.S. District Judge Thomas M. Durkin signed a temporary restraining order and permanent injunction directing Cook County Clerk David Orr to issue a marriage license to Vernita Gray and Patricia Ewert. Gray v. Orr, Case No. 1:13-cv-8449 (Nov. 25, 2013). The marriage equality bill signed into law last week by Governor Patrick Quinn does not go into effect until June 1, 2014, but that may be too late for Gray and Ewert, who have been a couple for five years and desperately want to marry, because Gray is suffering from advanced breast cancer and may not make it that long. Judge Durkin published an opinion to accompany his order on December 5; see Gray v. Orr, 2013 Westlaw 6355918 (N.D. Ill.).
The women filed suit on November 22, contending that the existing Illinois law banning same-sex marriages deprives them of due process and equal protection in violation of the 14th Amendment, echoing the existing marriage equality lawsuits on file with the Cook County Circuit Court. Those cases, in which motions to dismiss were previously denied, are being held in abeyance pending the June 1 effective date of the new marriage equality law.
Plaintiffs filed their motion for immediate relief on Friday, Nov. 22, and the court accommodated them with a nearing on the motion on Monday, November 25. In their motion papers, the plaintiffs explained why they could not wait until June 1. “Unfortunately, Vernita may pass away in the near future. Unless this Court acts, Vernita and Pat will be permanently denied the benefits, both tangible and dignitary, of legal marriage. For example, unless Plaintiffs are allowed to legally marry, they may face discrimination in hospital settings, an estate tax burden, and other harms, including challenges establishing eligibility for social security benefits as a surviving spouse. Given Vernita’s extensive medical expenses, the additional cost of being denied access to legal marriage is particularly burdensome.”
The complaint pointed out that no adequate remedy in money damages exists for the deprivation of the status of marriage, and that no harm would be done to the state of Illinois by granting them immediate relief. Indeed, the Illinois state government has now decided as a matter of public policy that same-sex couples should be entitled to marry. The effective date of the marriage law was dictated by the timing of the votes in the two houses of the legislature. Since the Senate bill was passed last May, it could not be enacted by the House during the fall “veto session” without a super-majority unless the effective date was no earlier than June 1. The bill won a majority, but not a supermajority. Illinois constitutional requirements would be preempted by federal constitutional requirements, however. In effect, the plaintiffs argued, they have a federal constitutional right to marry, and any state rule that makes that impossible — even for just seven months — would be inflicting an irreparable injury on them due to Vernita’s medical condition.
Judge Durkin was persuaded by this argument and signed the Order presented by counsel for the plaintiffs, amending it however to be effective until December 9, 2013. Although Durkin did not issue a written explanation of his Order, merely signing the one-page Order proffered by counsel, his agreement to sign the Order implicitly signaled his finding that plaintiffs were likely to prevail on the merits of their claim to a federal constitutional right under the 14th Amendment to marry.
Cook County Clerk David Orr promptly indicated that his office would issue a license as soon as they received a duly executed application. Orr, who is a named defendant in the pending state court lawsuits, is not defending the marriage ban on the merits; neither is the Attorney General, Lisa Madigan, who agrees that same-sex couples have a right to marry. Defense of the existing marriage ban in the state court lawsuit was left to county clerks from outside the Chicago area, who intervened as defendants represented by a Catholic litigation group, the Thomas More Society.
A large legal team assembled to represent the plaintiffs, including groups of attorneys from Kirkland & Ellis LLP and Miller Shakman & Beem LLP, staff attorneys from Lambda Legal’s Chicago office, and attorneys for the Roger Baldwin Foundation of ACLU, Inc., in Chicago.