Decision on Same-Sex Marriage Lawsuit Next Month

CHICAGO After hearing nearly two hours of arguments, a Cook County judge said Tuesday she'll decide whether to dismiss a lawsuit challenging Illinois' gay marriage ban late next month.

The lawsuit involves 25 same-sex couples who filed for marriage licenses in Cook County and were denied. Attorneys for the couples - from Lambda Legal and the American Civil Liberties Union of Illinois - have said that the state's same-sex marriage ban, approved in 1996, violates the state's constitution due process and equality clauses.

"They seek access to their birthright," Camilla Taylor, marriage project director for the legal advocacy group Lambda Legal, told Circuit Judge Sophia Hall.

However, an attorney representing downstate county clerks defending the same-sex marriage ban said gay couples in Illinois have many of the same rights as heterosexual ones, partly because Illinois allowed civil unions in 2011. The state's ban defines marriage as between a man and a woman.

Hall said she would make her decision on the motion to dismiss the case on Sept. 27.

Illinois' court battle to allow gay marriage - which has been going on simultaneously as the fight at the State Capitol - has been complicated. Those who usually defend the state's laws opted out of defending the ban after lawsuits representing the couples were filed in May 2012. The lawsuits were later consolidated into one.

Cook County State's Attorney Anita Alvarez and Illinois Attorney General Lisa Madigan, who offered up legal analysis, said the 17-year ban violates Illinois' constitution in that the law doesn't equally protect gay couples, among other things. Even Cook County Clerk David Orr, who is named in the lawsuit, has said all along he's in favor of same-sex marriage, but his office couldn't issue the marriage licenses under law. Orr's attorney also spoke against the ban in court Tuesday.

After Alvarez decided not to defend the state law, county clerks from downstate intervened. They've been represented by attorneys from the Thomas More Society, a Chicago-based public interest law firm.

Attorney Paul Linton said that the way the lawsuit has played out so far, with top elected officials opting not to defend the ban, only illustrated that gays have fair representation and political power in Illinois.

"There's a lot of work to do be done between now and her decision," Linton said of Hall's upcoming ruling.

Attorneys for the couples have also filed for summary judgment, which essentially asks for a quick ruling. They argued that the U.S. Supreme Court's recent ruling to strike down a part of the federal Defense of Marriage Act brings new urgency to the case. That high court's ruling only affects same-sex Illinois couples who were legally married in other states.

If Hall throws out the motion to dismiss the case, the quick ruling request will likely be Hall's next focus.

However, Thomas More attorneys were hopeful that she will dismiss the case.

"Illinois' definition of marriage as between one man and one woman is constitutional is grounded in our shared cultural experience, common sense, and the great weight of law," Peter Breen, vice president of the Thomas More Society, said in a statement. "We are confident in the strength of our legal arguments that there is nothing unconstitutional about traditional marriage."

Several couples named in the lawsuit attended Tuesday's hearing, including Richard Rykhus and Carlos Briones of Evanston. They were married in Canada eight years ago.

"I just really hope that we can continue to have the opportunity to tell our stories and say why not allowing marriage equality is wrong and how it affects us," Briones said.

Advocates for gay marriage have vowed to bring back legislation before state lawmakers in the fall. The sponsor of a marriage equality bill didn't call it for a House vote before lawmakers adjourned in May because he said he didn't have the votes.