The Chicago Family Law Blog

Separate is Unequal: Illinois Gay Marriage Ban Challenged

Just a year ago, Illinois passed a bill allowing same-sex Civil Unions. The law gave gay couples the same rights under the law as straight couples, except the right to inherit property and the power to decide medical treatment. Nevertheless, it was seen as progress for the gay rights movement and a step towards "mandating gay marriage" from those opposed to marital equality.

Now, according to CBS News, sixteen couples have joined together to challenge the language in Illinois law that prohibits gay marriage.

“A marriage between 2 individuals of the same sex is contrary to the public policy of this State.” 750 ILCS 5/213.1

According to the Chicago Tribune, the lawsuit is challenging the validity of that language in light of the Illinois Constitution.

Other lawsuits have raised the same type of Equal Protection argument that won the right to desegregated schools in Brown v. Board of Education, where the eternal phrase “separate [is] inherently unequal” came from.

In that case, which was actually multiple cases consolidated into one hearing, at least one district actually had better schools for black students than white students. Even still, the psychological impact of separation and the creation of an understanding that black students were second-class citizens was found to be unconstitutional.

The phrase, and the facts, would seem to be an apt analogy to marriages versus civil unions as well. It is interesting to note that same-sex marriage is treated the same as incest, polygamy, and cousin marriage.

The problem with an equal protection argument under the U.S. Constitution seems to be that sexual preference is not a fully-protected class like race or gender. It is illegal to fire someone or deny them the right to vote based on their gender or race. It is not illegal, under federal law, to fire someone for their sexual preference. A federal constitutional challenge is not a surefire victory, since discrimination against homosexuals is not treated in the same manner as federally protected classes.

Meanwhile, arguments under state constitutions have won in Massachusetts, California, and Connecticut.

For the record, California later passed a Proposition that re-banned gay marriage, which has led to an ongoing court battle over the issue, brought under, you guessed it, the Federal Constitution argument. As it currently stands, the Proposition was held to violate the Constitution’s Equal Protection guarantees, though the right to marry has been stayed until appeals have been exhausted.

The battle for equality is also taking place in federal courts, as the 1996 Defense of Marriage Act, passed by the U.S. Congress, was ruled unconstitutional last week by a second federal judge, reports the Huffington Post. Another case ruled it unconstitutional back in February.

Both cases are under appeal.

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