Office Hours: Closer look at Illinois gay marriage debate

A gay rights rally in Chicago. (Photo via Creative Commons license, Flickr user Chad Magiera)

Every month, STATEside will sit down with an Illinois State faculty member and take a closer look at an issue making state or national headlines, in a feature we’re calling Office Hours.

Our first installment of Office Hours is with Meghan Leonard, assistant professor in the Department of Politics and Government. This week, the Illinois legislature is expected to vote on Senate Bill 10. If it passes the General Assembly, same-sex couples would be allowed to marry in Illinois.

1. What will it mean for same-sex couples if the bill passes?

If the bill passes, those same-sex couples already in a civil union can apply for and receive a marriage license to have their civil union essentially converted into a marriage. However, importantly the act is titled the “Religious Freedom and Marriage Fairness Act” and is entitled as such because no religious leader will be required to perform marriage ceremonies for same sex couples. That being said, more than 300 faith leaders from across the state have signed on in support of the bill.

A gay rights rally in Chicago in 2008. (Photo via Creative Commons license, Flickr user Chad Magiera)

2. If the law is passed, what challenges might it still face?

If the law is passed and signed by Governor Pat Quinn, who has already voiced his support for it, it could still face a challenge in the courts. As with any law, it is up to the courts to determine if the law is consistent with, in this case, the Illinois Constitution. Given the current trends in judicial interpretation of gay rights, it is unlikely that a court would find a bill unconstitutional that both treats all groups of people equal and protects the rights of those religious leaders who would be opposed to the implementation of the bill.

3. Many see this bill as an equal rights issue. How does the bill compare to marriage equality legislation during the civil rights movement?

I think the comparisons to the civil rights movement more generally are fair comparisons. As far as marriage equality during the civil rights movement, the issues are comparable, but there are some differences. In Loving v. Virginia (1967) the Supreme Court overturned anti-miscegenation statutes, concluding that marriage is a basic, fundamental civil right, and denying this right based on race is a violation of the equal protection clause of the 14th Amendment. This case has been cited in many of the decisions relating to gay marriage.

Yet, there are two distinct differences between the interracial marriage and gay marriage cases. First, in many states, interracial marriage was criminalized, leading to penalties for these marriages. Second, the 14th Amendment of the Constitution was passed after the civil war with the specific intention of protecting individuals from unequal treatment based on race. Many court cases regarding the rights of same-sex couples have interpreted the 14th Amendment or state equal protection clauses to extend the right to marry to same sex-couples, but the final arbiter of this will ultimately be the Supreme Court.

4. Where would the passage, or failure, of the bill place Illinois in the nation when it comes to same-sex legislation?

If Illinois passages the same-sex marriage bill, they would become the 10th state (plus Washington, D.C.) in which same-sex marriages are performed. The other states where same-sex marriages are performed and recognized are: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington. Two Native American tribes, the Coquille and the Squamish, have legalized same-sex marriages. Same-sex marriages from other states are recognized in Rhode Island.

5. Are there greater national implications if the law passes or does not pass?

The national implications could potentially be significant. Should the law pass, this would include Illinois as part of the continuing trend toward greater recognition of same-sex marriage. This trend has continued to move from state courts to state legislatures and the public. In other words, these decisions are more directly made by the people (as in Maine, Maryland and Washington) or their direct representatives (as in Vermont, New Hampshire, New York and possibly Illinois). This signifies more public acceptance of gay rights and same-sex marriage more specifically. However, there are 30 states that have a constitutional ban on same-sex marriage. If the law does not pass, it will more clearly fall into this trend, which many gay rights supporters argued was slowing.

No matter the trend, this could all be changed as the Supreme Court takes two gay rights cases this term, which they will hear in oral arguments on March 26-27. While questions on legal standing to sue are central to both of these cases, the court will address whether or not the Defense of Marriage Act is constitutional and may even address whether a state can ban gay marriage under the equal protection clause. A decision in both of these cases is likely in June.

Rachel Hatch can be reached at rkhatch@ilstu.edu.