A Minute With...

Sara Benson, expert on sexual orientation and the law

8/28/2013  8:00 am

Cook County Circuit Judge Sophia Hall is expected to rule on a challenge to the state of Illinois’ 17-year-old same-sex marriage ban when court resumes later next month. University of Illinois law professor Sara R. Benson, an expert on sexual orientation and the law, spoke with News Bureau business and law editor Phil Ciciora about the ongoing fight to legalize same-sex marriage in Illinois.

How similar is the fight to allow same-sex couples in Illinois to marry to California’s headline-grabbing Proposition 8 battle of a few years ago?

image of professor sara bensonIn some ways it is very similar – especially with regard to the legal issues involved. The main similarity is that people are being treated unequally on the basis of sex or sexual orientation. We heard similar arguments in the Prop. 8 litigation, and this is also the basis for just about every same-sex marriage legal battle. Whether the litigation takes place in California or Iowa or Illinois, the point of contention is that people are being treated unequally under the law.

On the other hand, the Illinois lawsuit is a challenge to a state law providing that marriage is only permissible between a man and a woman. This is different from the California litigation because Prop. 8 was not a state law – it was a resolution passed by a vote of the people. In California, the voting public essentially tried to amend their constitution to forbid same sex marriage, which is different than challenging a long-standing state law.

In light of last June’s Supreme Court decision in U.S. v. Windsor, which overturned the Defense of Marriage Act, people’s lives and livelihoods are at stake in the current litigation because the outcome could affect their taxes, Social Security benefits and other spousal benefits. Before the DOMA decision, same-sex partners weren’t allowed to file joint tax returns because federal law prohibited it. But now, with DOMA overturned but only civil unions legal in Illinois, there are greater things at stake, especially after the government issued a statement announcing that civil unions will not be treated similarly to marriage under the U.S. v. Windsor decision.

In other words, only individuals who qualify as married to their same-sex partner can benefit from the Windsor decision.

Illinois Attorney General Lisa Madigan and Cook County State’s Attorney Anita Alvarez both declined to defend the law that bans same-sex marriage. What can we infer from that?

This is another parallel to the Prop. 8 case. In both instances, the individuals charged with defending the law declined to do so. In Illinois, one of the clerks named in the lawsuit has publicly stated that he does not support the law and will not defend against the lawsuit.

Public officials are thinking about their roles at a higher level. This public stance also is similar to (President) Obama’s stance on DOMA – saying, in effect, the federal government will follow DOMA, but will refuse to defend it in court because it is unconstitutional. By being so bold as to publicly endorse that position, Obama really set the tone for future public officials such as the clerk in Illinois. That’s been the playbook that other public officials have followed ever since.

It also helps that Obama was re-elected, which created political cover.

How long until this case is resolved?

Right now the case is only at the trial court level, and it’s in the early stages. By no means will it be an overnight case. This will likely be drawn out for some time through the appellate process. But that doesn’t mean this process goes on in a vacuum. My feeling is that there will be more movement in the legislature as well. It could be that the Legislature beats the courts to legalizing same sex marriage in Illinois because of the machinations of the appeals process.

Also, if the suit is dismissed, that could be the end of the lawsuit, barring an appeal – but that doesn’t mean it’s the end for same-sex marriage in Illinois. The Legislature could still go forward with another bill to legalize it.

Whatever happens, it will be an ongoing process, one where there’s not likely to be a quick resolution.

The bill that would have made Illinois the 13th state to allow same-sex couples to marry fell a few votes short in the Illinois House earlier this summer. Where does the state of Illinois sit on the spectrum of gay rights?

The state of Illinois is the next fighting ground for gay rights. This lawsuit is happening at this time because Illinois has made some progress. That is, we have civil unions, and the state Legislature has been proposing same-sex marriage and gotten it passed through one legislative body.

But are we on the cutting edge? No. DOMA has already been struck down; the Prop. 8 litigation has been settled; and states like Iowa and Massachusetts have already legalized same-sex marriage.

So Illinois is certainly not at the vanguard. But is it important? Yes. The Supreme Court made it very clear in Windsor that they consider gay marriage to be a state law issue. Part of the decision in Windsor is an idealized federalism, saying, in effect, that this is an issue for the states to figure out, and we’re not going to unilaterally say we need same-sex marriage for everyone. That means you’re going to see the fights rev up at the state level, and Illinois is a prime example.


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