Could Illinois' Gay Marriage Debate Be Trumped by SCOTUS? - The Chicago Family Law Blog

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Could Illinois' Gay Marriage Debate Be Trumped by SCOTUS?

The push for marriage equality has hit Illinois once again, with proponents reintroducing a bill earlier this week that would recognize gay marriage. Previous attempts have failed to produce much more than the separate-but-almost-equal civil union arrangement. Should the bill pass as written, Illinois would become the eleventh state to recognize same-sex marriage.

In other words, whether you are for it or against it, this is potentially a very monumental piece of legislation. But the debate could become completely irrelevant in a matter of months.


The Supreme Court, that's why. Our nation's highest court is set to hear two cases that deal with marital equality: the Defense of Marriage Act (DOMA) case and the California Proposition 8 case.

Is DOMA Doomed?

For those unfamiliar with the controversial law known as DOMA, it denies tax, health, and pension benefits to same-sex couples who were married legally in their own states. It also provides that states do not have to recognize other states' legal gay marriages. The First Circuit Court of Appeals overturned the benefits portion of DOMA, leading to the upcoming SCOTUS showdown.

What's wrong with DOMA? The First Circuit held that the government's interest in preserving its resources was not a sufficient reason to withhold rights from a minority group in light of the Constitution's equal protection clause.

California Schmalifornia?

Here's the short version: California legalized gay marriage. Then the citizens, in their infinite wisdom, passed a proposition banning gay marriage. A lower court cited similar equal protection language in ruling that denying rights to one group, especially after giving them the right temporarily, was unconstitutional.

A series of appeals also led to the Supreme Court. The result: Both the California case and the DOMA case will be heard at the same time, according to the Chicago Tribune.

Why Should Illinoisans Care?

There are two main ways SCOTUS can deal with these cases: the narrow path and the wide path. In general, courts prefer to limit their decisions to the facts and cases immediately before them and rule as narrowly as possible, saving broad generalizations for future cases. We call it judicial restraint.

If the Court goes narrow, it can rule on that single provision of DOMA and the issue of providing benefits to same-sex couples. This would not force gay marriage upon any state. Justices could also rule narrowly on California's unique situation regarding same-sex nuptials, and possibly limit their ruling to situations where the right has been granted and then taken away.

However, sometimes the rule is so clear and so obvious that the Court decides to issue a big, historic ruling that changes everything, such as a certain desegregation ruling. After all, if it is unfair to bar gay marriage in California due to the guarantee of equal protection of the laws, why should that be any different for a Chicagoan? SCOTUS' ruling could potentially be broad enough to force all states and the federal government into recognizing same-sex marriage.

The decision is expected at the end of the Supreme Court's current term in June.

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