Brett Turner, Senior Attorney, National Legal Research Group
The most recent American state to recognize same-sex marriage by statute is Illinois. A bill recognizing same-sex marriage was signed by the governor on November 20, 2013, but the bill does not take effect until June 1, 2014. S.B. 10, 2013 Ill. Legis. Serv. Pub. Act 98-597 (West) (codified primarily at 750 ILCS §§ 5/201, 5/212, 80/10).
Vernita Gray and Patricia Ewert have a long-standing same-sex relationship. In 2011, when Illinois first recognized same-sex civil unions, they immediately joined in such a union. When it became apparent that Illinois would soon allow same-sex marriages, they planned to enter into such a marriage.
But a cruel twist of fate intervened. Gray developed cancer, and her cancer advanced rapidly, leaving her with only weeks to live. It was gravely questionable whether Gray would live until June 1, 2014, the effective date of the new Illinois legislation. When the Cook County Clerk refused to issue an immediate marriage license, Gray and Ewert sued the Clerk in federal court, arguing that the Clerk's refusal to grant the marriage license violated due process and equal protection. To prevent irreparable harm, they sought a temporary restraining order ("TRO") directing the Clerk to issue them a marriage license.
The federal court granted the TRO. Gray v. Orr, No. 13 C 8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013). Failure to grant the TRO would cause irreparable harm, because Gray was
unlikely to live until June 1, 2014. If the plaintiffs were unmarried when Gray died, they would be denied important legal benefits such as "the right to take leave under the Family and Medical Leave Act, 29 U.S.C. § 2614(c)(1); the right to file a joint income tax return; spousal tax benefits such as exemption from certain estate tax obligations; and eligibility for Ewert for social security benefits as a surviving spouse." Id. at *4. The plaintiffs therefore had standing to seek the TRO.
The question then became whether the plaintiffs were likely to succeed on the merits. The Supreme Court held in United States v. Windsor, 133 S. Ct. 2675 (2013), that a restriction on recognition of same-sex marriage violates due process and equal protection if it is motivated by antigay prejudice. "An examination of the Illinois Marriage Act's history and the 1996 amendment declaring same-sex marriages to be against Illinois public policy reveals a similar animus towards same-sex couples." Gray, 2013 WL 6355918, at *4. Like Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013), discussed here, Gray suggests that all state law provisions barring same-sex marriage might be invalid—a holding that as a practical matter would force recognition of same-sex marriages nationwide. Whether this is a correct interpretation of Windsor remains to be seen.
But Windsor further held that restrictions upon same-sex marriage violate due process and equal protection if they lack a rational basis. While Windsor suggested at other points that the
recognition of same-sex marriage was a matter for state law, Illinois has already decided to recognize same-sex marriage. The court found no rational basis for the delayed effective date:
There is no legislative history that the parties have pointed to, or that the Court could find, that provides either a legitimate governmental justification or a rational basis for the General Assembly's decision to delay the effective date of Senate Bill 10. Nowhere is there any mention or suggestion that a delay in the effective date is necessary to, for example, change forms in county clerks' offices to allow for an orderly transition to the new law. Indeed, the only reason the parties have cited for the delay is the functioning of the state's logistical process of passing a law.
Ultimately, the General Assembly's recent enactment of the new law permitting same-sex marriages and the attendant policy goal of that new law undermines any reason for applying the justification underlying the current law to these plaintiffs in these compelling circumstances. In any event, at least at this stage, Plaintiffs have demonstrated the requisite "some likelihood of success" on the merits of their as-applied equal protection claim, a conclusion that supports granting preliminary relief.
Gray, 2013 WL 6355918, at *5. The court also noted that the Illinois Attorney General had refused to defend the Clerk's refusal to issue the certificate, which was another indication that there was no rational policy basis for the Clerk's position. The court therefore granted the TRO requested by the plaintiffs, allowing them to marry before Gray dies.
The rational basis discussion is the strongest part of the Gray opinion. Windsor is very unclear on whether state restrictions (as opposed to federal restrictions) on same-sex marriage are unconstitutional. The broad holding that legislation is unconstitutional if based upon antigay
prejudice could be applied to state law, but Windsor also held at considerable length that states are free to recognize or not recognize same-sex marriage. Bluntly put, antigay prejudice is probably a material part of the publicly stated rationale for any provision disallowing same-sex marriage; this issue tends to provoke strongly worded public statements from social conservatives who vigorously oppose same-sex marriage. If these statements make state restrictions upon same-sex marriage unconstitutional, then states will functionally not be free to refuse to recognize same-sex marriage.
But other portions of the Windsor opinion stress that the validity of same-sex marriage is an issue for state law. "[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations." Windsor, 133 S. Ct. at 2691. "[T]he federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction." Id. If marital status is a question exclusively for
state law, states must be free to choose to either recognize or not recognize same-sex marriage. Otherwise, the validity of same-sex marriage would depend upon federal law, not upon state law.
In other words, many proponents of same-sex marriage believed that the Court should resolve Windsor by expanding the principles of Loving v. Virginia, 388 U.S. 1 (1967), and recognizing a fundamental federal constitutional right to same-sex marriage. Windsor did not do that, and instead held that the validity of same-sex marriage depends upon state law. Necessarily, that holding implies that state law is free to either recognize or not recognize same-sex marriage. If that is not true, and the recognition is required by federal law, then the validity of same-sex marriages will be controlled by federal law, not state law.
That, in a nutshell, is the fundamental internal conflict within the Windsor opinion. The opinion states that marital status is an issue exclusively for state law. When the holding is logically extended, however, federal law will functionally require all states to recognize same-sex marriage, because essentially all provisions of state law refusing to recognize same-sex marriage were accompanied by antigay statements. Eventually, the Court will have to either give up the concept that state law is controlling and hold that federal law requires recognition of same-sex marriages, or hold that state law restrictions upon recognition of same-sex 0arriage are constitutional despite the presence of some level of antigay prejudice among at least some supporters. There are no provisions of state law preventing recognition of same-sex marriage that were enacted without the making of public statements suggesting antigay prejudice by someone—often social conservatives with strong feelings on the issue.
There may, of course, be room for looking at the role of the persons making the statements. Perhaps state law restrictions on same-sex marriage are unconstitutional when major legislators make prejudicial statements, but not unconstitutional when such statements are made by outside interest groups. But cases like Gray seem to be suggesting that state law restrictions preventing recognition of same-sex marriages are unconstitutional if anyone, anywhere, made statements prejudicial to gay people at the time the restriction was enacted. This rule will functionally create a federal right to same-sex marriage, because the enactment of provisions restricting recognition of same-sex marriage are almost always accompanied by statements by someone showing a high level of prejudice against gay people.
The internal conflict within Windsor was not relevant to the facts of Gray, however. Illinois has already crossed the Rubicon on same-sex marriage, by enacting a bill to allow it. The narrow question was whether there existed a sufficient rational basis to justify the delayed effective date, in a situation where the delay would probably prevent the plaintiffs from ever being able to marry. Given the lack of any substantial policy reasons for the delay, the court's holding that no rational basis existed is not surprising.
A similar result was reached in Lee v. Orr, No. 13-CV-8719, 2013 WL 6490577 (N.D. Ill. Dec. 10, 2013). Lee involved two same-sex couples, each of which included one partner in critical medical condition who might not survive until June 1, 2014. The plaintiffs sought a TRO
not only for themselves, but also for a putative class of "medically critical plaintiffs." The class had not yet been formally certified, but the court found that injunctive relief could still be granted:
The court may conditionally certify the class or otherwise order a broad preliminary injunction, without a formal class ruling, under its general equity powers. The lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.
Id. at *2 (quoting Ill. League of Advocates for Dev. Disabled v. Ill. Dep't of Human Servs., No. 13 C 1300, 2013 WL 3287145, at *3 (N.D. Ill. June 28, 2013) (quoting 3 William Rubenstein et al., Newberg on Class Actions § 9:45 (4th ed. 2002))).
On the merits, Lee agreed that enforcement of Illinois's prior law against recognition of same-sex marriage would be unconstitutional:
The Illinois law, particularly the 1996 amendment to the Marriage Act declaring that same-sex marriages are against public policy, is clearly intended to single out gays and lesbians for disparate treatment based solely on their sexual orientation. Moreover, the new amendment contained in Senate Bill 10 legalizing same-sex marriage is an express repudiation of the state's earlier position and undermines the traditionally invoked justifications for the prohibition on same-sex marriage. As set forth in Windsor, denying same-sex couples equal status under the law serves no constitutionally legitimate purpose.
Id. Like the reasoning in Gray, the literal reasoning in Lee suggests that Illinois's refusal to recognize same-sex marriage was unconstitutional even before it was repealed. If prior law was
"intended to single out gays and lesbians for disparate treatment based solely on their sexual orientation," id., it was certainly so intended from the moment it was enacted. But the Windsor opinion anticipated at various points that states would be free to recognize or not recognize same-sex marriages. The validity of state law restrictions upon same-sex marriages, essentially all of which were accompanied by statements by conservative social groups suggesting antigay prejudice, is one of the crucial uncertain points in the Windsor opinion.
In the specific context of Gray and Lee, however, where the crucial decision to recognize same-sex marriage has been made, and the question is only one of effective date, the courts seem to be holding that a delayed effective date is unconstitutional to the extent that it prevents marriages of same-sex couples when one member of the couple may not live until the effective date arrives.
