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Legislative action more likely than courts to tackle marriage in Illinois

May 22, 2009 – Same-sex marriage advocacy groups in Illinois are opting for legislation rather than litigation in their quest for the legal right to marry.

And as news spread earlier this month that Maine became the fifth state to legalize gay marriage, with New Hampshire not far behind, activists say they are hopeful these other states’ legislative decisions will influence the Illinois General Assembly.

“We see the states in New England, one after another taking votes on this. I think it sets a tone and shows people this is the direction of history,” said Rep. Greg Harris (D-Chicago). “I think some people will take that into account more than others as they look at their position and they look at how they want history to view them as public servants.”

Harris is the chief author behind Illinois’ civil unions bill (HB2234), Religious Freedom Protection and Civil Union Act, which is ready to be called for a House vote. However, with several new legislators and the looming budget deficit, Harris said he is still feeling out the potential votes. The bill’s third reading deadline was extended from May 8 until May 31.

“We’re going to work it in when the time is right,” said Harris, who is optimistic it will pass. “A vote like this is close one way or the other and it’s going to take a lot of work both in the House and in the Senate. This is not going to fly through with a 70 percent majority.”

Jeremy Gottschalk, attorney and president of the Lesbian and Gay Bar Association of Chicago (LAGBAC), said his group supports Harris’ bill.

“The important thing is to get the protections that civil unions offer,” he said, adding that it is a step in working toward equal marriage rights.

The main reason litigation regarding same-sex marriage has not made headway through the court system in Illinois is likely due to potential conservative judicial rulings, especially in the downstate region, Gottschalk said.

“It’s all going through the legislature now,” Gottschalk said. “I don’t know if it would go through the courts here.”

Someone would need to file for a marriage license and be denied, Gottschalk said. Then, they would have to sue the county clerk’s office for discrimination.

Logan Square residents and longtime couple John Pennycuff and Robert Castillo have been filing for marriage licenses in Cook County on a regular basis since 1991.

“We’ve always been denied,” Pennycuff said.

The couple met at a health club 18 years ago and have been together ever since. “For me, it was love at first sight,” Pennycuff said of his partner.

They originally married in San Francisco in 2004 when licenses were first granted in that city. They married again in San Francisco on June 25, 2008, after the state’s Supreme Court granted same-sex marriage rights.

“It will be through legislation [in Illinois]. We will get same-sex marriage faster through the General Assembly,” Pennycuff said, who agreed that potential conservative rulings have thwarted the issue in the courts. And if it is passed through the legislature, the law may have better staying power, rather than court rulings being overturned.

Pennycuff said civil unions are a good step, but not good enough. He supports equal marriage rights, first and foremost.

“With this, if something happens to Robert, I will be able to see him in the hospital without being denied access,” Pennycuff said. Civil unions would also guarantee the right to inherit, file joint state tax returns and certain state benefits. There are 1,138 benefits, rights and privileges related to marital status, according to the U.S. Government Accountability Office.

Currently, Illinois law defines marriage between one man and one woman. The General Assembly put the law on the books in 1996, after Congress enacted the Defense of Marriage Act (DOMA), which bars federal recognition of same-sex marriages and allows states to do the same. Forty-one states have Defense of Marriage Acts, according to the National Conference of State Legislatures. But Illinois has not amended its Constitution to define marriage between one man and one woman.

In 2006, the Illinois Family Institute and Protect Marriage Illinois tried to get a non-binding constitutional referendum to define marriage on the ballot in Illinois, but many of the signatures gathered were thrown out by the State Board of Elections. In the end, they were short of the 283,111 signatures required.

David Smith, executive director of Illinois Family Institute, pointed to two election jurisdictions, Cook County and the city of Chicago, where problems arose with the ballots.

“It’s really subjective,” Smith said. “It was with the intent of hurting us enough to get off the ballot.”

To achieve a binding referendum on the ballot, the General Assembly would need to vote and pass with a three-fifths majority whether the measure would be put before voters statewide.

“Here in Illinois, I would argue that it is the most difficult state in the union to amend the State Constitution,” said Smith.

The groups have decided not to pursue another ballot issue in 2010. “It’s just not worth it,” Smith said.

Their hope, similarly to gay rights activists, is in the General Assembly

“We’ve had an amendment introduced in the state House for six years now,” Smith said, referring to the House Joint Resolution Constitutional Amendment (HJRCA02) sponsored by Rep. David Reis of Jasper County. However, it has never moved from Rules Committee.

“It’s really going to come down to a changeover of the elected officials in Illinois,” Smith said. “The answer is a political one.”

Specifically, he wants to see new leadership in both the House and the Senate, outside of Rep. Mike Madigan (D-Chicago) and Sen. John Cullerton (D-Chicago).

“We are an education organization,” Smith said. “We will do our best to educate people on the dangers posed by counterfeit marriage and the need for protecting natural marriage.”

Unthwarted by the passage of Proposition 8 last November in California, which overturned the state Supreme Court’s decision to legalize same-sex marriage, or by the 30 states that have ratified their constitution to define marriage between one man and one woman, marriage rights activists have been busy in Illinois.

Corrine Mina, Chicago chapter coordinator for Join the Impact, a LGBTQ advocacy group, said they have refined and strengthened their efforts since the election.

“After Prop 8, we had our first protest and didn’t really know what we were doing. We knew we were fighting for gay rights, but didn’t really know what that entailed,” she said. They educated themselves on the history of the movement and created a board of directors.

“The momentum right now is really great,” Mina said, pointing to Maine, New Hampshire, Massachusetts, Connecticut, Vermont and Iowa, which all now allow or are close to allowing same-sex marriage. She also applauded the Oregon, New Jersey and, most recently, Washington State for providing civil unions.

The group has been lobbying lawmakers in support of Harris’ bill

“Right now civil union is all the talk, which is great, but definitely not enough,” Mina said.

This isn’t the first time Harris has introduced legislation impacting gay rights. He first introduced the Religious Freedom and Marriage Fairness Act in 2007, which would provide equal marriage rights to homosexual couples. It was re-introduced again this year (HB178), but hasn’t made it out of Rules Committee.

Mina said with the Iowa ruling right next door, she hopes it will influence lawmakers in Illinois.

“I personally think lobbying and having to deal with the politics part of it is necessary,” Mina said. “I’m hopeful for it and I definitely think we’re going to have to fight hard for it.”

Harris said it’s inevitable that the other states’ decisions to legalize same-sex marriage will impact the Illinois General Assembly in some way. But just how great or profoundly is yet to be seen.

“I think over the long run it will be beneficial for all of society and democracy as a whole for these things to be done legislatively,” Harris said. “It’s a larger expression of the will of the people and an understanding that this is what the majority opinion on this subject is.

“I still think the New Jersey Supreme Court has a great line in their ruling: ‘The evolving ethos of a maturing society.’”

Posted by on May 22, 2009. Filed under Politics is Local. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.