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Federal judge rules gay wedding can proceed, despite constitutionally required wait

Tuesday, Nov 26, 2013

* I can understand the reasoning, I can totally sympathize with the plaintiffs and I am glad they’re now allowed to get married; but it still makes me somewhat uncomfortable that a federal judge would so easily toss aside a strict requirement in the Illinois Constitution

US District Court Judge Thomas Durkin has ordered the Cook County, Illinois, clerk to issue an expedited marriage license to Chicago lesbian couple Vernita Gray and Patricia Ewert as Gray is terminally ill.

Gray, 64, has brain and bone cancer and Lambda Legal and the American Civil Liberties Union filed a lawsuit on the couple’s behalf to ensure that they can marry before she dies.

Despite being signed into law by state Governor Pat Quinn, Illinois’ law allowing same-sex marriage does not take effect until 1 June, meaning without the ruling the couple would have a half year wait before they could marry.

Cook County clerk David Orr has said that he will comply with the court’s order, noting that expedited marriage licenses are granted to heterosexuals in similar situations.

* From the Illinois Constitution

A bill passed after May 31 shall not become effective prior to June 1 of the next calendar year unless the General Assembly by the vote of three-fifths of the members elected to each house provides for an earlier effective date.

This language was inserted into the Constitution after the public voted for an amendment in 1994.

* Back to the plaintiffs

Gray, who has inoperable brain tumors and breast cancer that has spread to her bones, learned of the news shortly after undergoing chemotherapy, which left her in a weakened state. She was diagnosed with breast cancer in 1996.

“She may choose to wait a day or two to get married, just because the day after treatment can be very difficult,” said Camilla Taylor, the couple’s attorney. Taylor said Gray’s brain tumors could begin to fatally swell any day. “It could happen at any time without warning.”

Courtney Greve, spokesman for Clerk David Orr, said the paperwork for the marriage license would be hand-delivered to the couple Monday night and would make them eligible for marriage at 12:01 a.m. Tuesday.

* Tribune

Orr’s office, which was represented by the state’s attorney’s office, chose not to defend itself against the lawsuit.

Durkin essentially ruled that because of the special circumstance, the women should get a marriage license. The ruling affects only them but could serve as an inspiration for other couples facing similar situations, their attorneys said.

“This case illustrates the cruelty of being made to wait seven months to be able to marry,” Taylor said. “There is no sense to that, and there are many Illinois families that are suffering significant harm because they are not married. While this family’s situation is particularly dire, there are others, too, who need to be able to marry.”

This could set some interesting precedents.

- Posted by Rich Miller        

  1. - Ghost - Tuesday, Nov 26, 13 @ 9:46 am:

    actually there is all kinds of legal precedent for special treatment in cases like this. Its just not usally an issue that hits the press :)

  2. - Anon - Tuesday, Nov 26, 13 @ 9:49 am:

    The pro-gun people needed to draw this judge.

    He knows how to get things done without multiple extensions and delays.

  3. - SangamonRetiree - Tuesday, Nov 26, 13 @ 9:49 am:

    This could be an interesting/dangerous precedent(take note, retirees!!)

  4. - A guy... - Tuesday, Nov 26, 13 @ 9:50 am:

    Heart aches for these people. A law is a law, but if there really is strong precedent, grant this lady her dying wish post haste.

  5. - LincolnLounger - Tuesday, Nov 26, 13 @ 9:50 am:

    I’m a big supporter, but I am equally troubled, Rich.

  6. - RNUG - Tuesday, Nov 26, 13 @ 9:53 am:

    SangamonRetiree @ 9:49 am:

    Not all that much so. The judge is just allowing a duly passed (and eventually constitutional) law to take effect early in one specific case.

    Now if the judge had truly made the law retroactive to effectively to recognize a previous civil union date … then I would be worried.

  7. - hisgirlfriday - Tuesday, Nov 26, 13 @ 9:53 am:

    I still don’t get why the original Orr lawsuit didn’t keep going even after marriage passed, precisely because of situations like this coming up between Nov. 20 and June 1.

  8. - Anonymous - Tuesday, Nov 26, 13 @ 9:57 am:

    Hope Reis Morrison Kay and Ives dont relaize that Judge Durkin is a very close relative of Leader Durkin.

  9. - Ghost - Tuesday, Nov 26, 13 @ 9:58 am:

    If Batkid were here he would approve as well….

  10. - Just Observing - Tuesday, Nov 26, 13 @ 10:02 am:

    I had the same thoughts. I’m a supporter of gay marriage and am I’m happy for these two ladies, but I’m a bit confused as to what legal grounds the Judge based his decision on.

  11. - 47th Ward - Tuesday, Nov 26, 13 @ 10:04 am:

    Precedent, schmecedent. This is an act of compassion. If retirees or gun owners try to use this decision in their cases, they’d better have an equally compelling plaintiff or they’re going to get tossed out of the courtroom.

    This is what justice looks like. That’s why we have courts.

  12. - Demoralized - Tuesday, Nov 26, 13 @ 10:04 am:

    I have no problem with this. The person is dying. The law passed. We shouldn’t obsess with a date to prevent a dying person from getting married.

  13. - RNUG - Tuesday, Nov 26, 13 @ 10:11 am:

    Just Observing @ 10:02 am:

    Haven’t gone and found the order but my guess would is the judge thought “equal treatment” was being denied in this specific case because one of the partners would (most likely) be deceased before the wait period elapsed.

  14. - Mittuns - Tuesday, Nov 26, 13 @ 10:11 am:

    Is this any different than some State’s Attorneys deciding not to prosecute people carrying guns when there was no law on the books allowing them to do so?

    Not snarky, just curious.

  15. - Constitution what Constitution - Tuesday, Nov 26, 13 @ 10:15 am:

    The General Assembly is ready to ignore their oath in regards to the Pensions why would the State Constitution matter for Gay Marriage? The State Constitution is only important when it’s the Legislators pay. I’m sure the Citizens of Illinois have every confidence in their government that this is appropriate.

  16. - cermak_rd - Tuesday, Nov 26, 13 @ 10:21 am:

    If she were to die before they married, her partner would be subject to federal inheritance taxes since the Feds don’t recognize IL civil unions. So wouldn’t we be right back to something very similar to the DOMA case in the first place?

    I mean, in essence, the feds would demand their take, she would pay it, she would sue the feds, at that point the whole thing would be moot as far as actual IL law, she would probably get her money back from the feds and whole thing would wind up being far more trouble than just giving the couple a compassionate early marriage license, just as they do mixed sex couples in similar circumstances.

  17. - RMW Stanford - Tuesday, Nov 26, 13 @ 10:27 am:

    I support same sex marriage and I am happy for this couple, but it does bother me that they are setting aside the Constitutional requirement.

  18. - RNUG - Tuesday, Nov 26, 13 @ 10:29 am:

    I hate to repeat the obvious but … this was a FEDERAL, not state, judge who issued the order under, I suspect, “equal treatment” logic.

    That is why I think the GA is playing with fire by leaving the judges out of any “pension reform” and may open the door to a federal suit.

  19. - Steve - Tuesday, Nov 26, 13 @ 10:31 am:

    Much wisdom floating around. Constitutional rights can’t wait.

  20. - OneMan - Tuesday, Nov 26, 13 @ 10:31 am:

    RNUG –

    I think it was a federal judge because they might have made the SS benefit argument. That’s a guess…

  21. - RonOglesby - Tuesday, Nov 26, 13 @ 10:38 am:

    I understand their need here, but calling this “justice” doesnt sit well with me. Either “words on paper” mean something and we are governed by laws and rules, or simply because of compassion, or wealth, or whatever, the rules can be bent whenever a judge feels so inclined.

    While I support SSM, I believe in the rule of law and the constitution also. Ends justifying the means is always a bad idea.

  22. - RNUG - Tuesday, Nov 26, 13 @ 10:39 am:

    OneMan @ 10:31 am:

    Could have. As I pointed out the other day in a pension discussion, the IL discrimination laws are much narrower and more specific than the federal laws.

  23. - Rob Roy - Tuesday, Nov 26, 13 @ 10:42 am:

    We are now a nation of men not laws.

  24. - Anon - Tuesday, Nov 26, 13 @ 10:43 am:

    Laws and the constitution are obviously sacrosanct..

    But there’s a small part of me that just says “…come on” in this case.”

    Couldn’t be happier for them.

  25. - Bigtwich - Tuesday, Nov 26, 13 @ 10:54 am:

    An unpublished (I expect) decision of a District Court does not really have value as precedent. There are no lower Courts. The decision is (probably) not published. The decision might be said to have some persuasive value. Here the plaintiff filed a case. I expect, given the length of the Orr suite, there was a colorable case stated. The defendant chose not to contest it, and good for them. Anyway, if you get that situation again the persuasive value might arise.

  26. - anon - Tuesday, Nov 26, 13 @ 10:57 am:

    The judge knows perfectly well that this ruling could be tossed out on appeal. But an appellate ruling likely would not come down until after the woman is already deceased. Let the poor woman have some happiness on her death bed. Justice is served.

  27. - Demoralized - Tuesday, Nov 26, 13 @ 10:59 am:

    ==but calling this “justice” doesnt sit well with me==

    Seems like justice to me. Preventing a dying person from getting married when the law has passed simply because of a date issue is anything but justice.

  28. - Demoralized - Tuesday, Nov 26, 13 @ 11:03 am:

    ==We are now a nation of men not laws. ==

    Oh please. I hardly think this is the end of the world as we know it. Stop being so dramatic for pete’s sake.

  29. - Boog - Tuesday, Nov 26, 13 @ 11:14 am:

    -Oh please. I hardly think this is the end of the world as we know it. Stop being so dramatic for pete’s sake.-

    It’s easy to be dismissive when gay marriage is one of your pet issues, but what if the shoe were on the other foot and a judge ruled that CCW should be enacted immediately (and bypass all of the foot-dragging by the ISP) ??

  30. - cermak_rd - Tuesday, Nov 26, 13 @ 11:21 am:


    If you can create as sympathetic a situation, say a man who wants a CC license so he can kill himself because he’s slowly dying of ALS and needs the license before he becomes too disabled to use it, I’d be just as willing to take the view that compassion should serve. Though I might wonder why he needs to concealed carry his suicide weapon, so the analogy isn’t perfect, but still, something like that.

  31. - Bemac - Tuesday, Nov 26, 13 @ 11:32 am:

    “Cook County clerk David Orr has said that he will comply with the court’s order, noting that expedited marriage licenses are granted to heterosexuals in similar situations.”

    What is the similar situation?

  32. - RonOglesby - Tuesday, Nov 26, 13 @ 11:34 am:


    My point is that words and laws have meaning. We may not like them, we may fight to change them. But to disregard because we wont like the circumstances is generally not a good idea.

    Am I happy for this couple. Sure. Good for them. BUT, I also realize that someone put in a court and asked to rule on law and the constitution should do just that. As mentioned above plenty will applaud this ruling, yet would scream bloody murder if it would have been about something they dislike. We should all be honest enough to look at it like that and ask ourselves “what if it was about X” with X being something you are against.

  33. - wordslinger - Tuesday, Nov 26, 13 @ 11:41 am:

    Why didn’t Orr just issue the license and let someone sue? Who would dare?

    The Constitutional question is above my pay grade.

    But I know there have been federal rulings that explicitly do not set precedent. Bush v Gore comes to mind.

  34. - Levi - Tuesday, Nov 26, 13 @ 12:07 pm:

    Gang, this is a federal district court judge. District court judges don’t set precedents; appellate court judges set precedents, and this one won’t see an appellate court, because there’s no one to appeal. So simmer down.

  35. - Allen Skillicorn - Tuesday, Nov 26, 13 @ 12:23 pm:

    As I recall Mary Shepard made the same argument for immediate concealed carry. I guess personal safety is less of a right…

  36. - wordslinger - Tuesday, Nov 26, 13 @ 12:35 pm:

    Allen, nice unrelated drive-by.

    Where in the 7th Circuit’s ruling that Illinois’ old law was unconstitutional did you read that conceal-carry was required at all?

    And has the 7th Circuit denied the NRAs appeal?

  37. - anon - Tuesday, Nov 26, 13 @ 12:36 pm:

    “We are now a nation of men not laws.” The gender-specific reference is kind of ironic when the case is about 2 women marrying.

  38. - Formerly Known As... - Tuesday, Nov 26, 13 @ 12:37 pm:

    The heart cheers this as a kind, compassionate verdict.

    The mind is more muted for concern of placing emotion before law.

  39. - countyline - Tuesday, Nov 26, 13 @ 12:49 pm:

    ’slinger…I do believe the 7th’s decision required that the GA pass some sort of CCW law, did it not ? Otherwise, what was the 6 months worth of stalling, whining, and cries of “wild west” from Chicago democrats all about ?

  40. - wordslinger - Tuesday, Nov 26, 13 @ 12:51 pm:

    –’slinger…I do believe the 7th’s decision required that the GA pass some sort of CCW law, did it not ?–

    Give it a read.

  41. - Demoralized - Tuesday, Nov 26, 13 @ 1:10 pm:


    If it were the same situation with a different topic and the law on that topic had also been passed I would have no problem with it if there were similar circumstances involved. I don’t sit up at night worrying about things like this.

  42. - Anonymous - Tuesday, Nov 26, 13 @ 1:36 pm:

    Do-Gooders. Short sighted and selfish

  43. - Rarely Posts - Tuesday, Nov 26, 13 @ 1:37 pm:

    There seems to be a a lot of confusion about exactly what Magistrate Durkin did.
    The request for relief is here:

    As you can see, the prayer for relief does not ask the court to “toss aside” the June 1 effective date, and in fact does not ask the court to hurry up with the newly enacted law. Rather, the court issued a Temporary Restraining Order barring enforcement of the Illinois Marriage Act. I agree that the effect is the same but there is a huge procedural difference. This relief could have been obtained even had the recent law never been passed. The order says nothing about accelerating the effective date. Also this order applies only to these two parties and not to others who want to obtain a marriage license. And it expires December 9.

  44. - Demoralized - Tuesday, Nov 26, 13 @ 2:20 pm:

    ==As I recall Mary Shepard made the same argument for immediate concealed carry.==

    The law was in effect and is currently being implemented. Completely different scenario.

    =I guess personal safety is less of a right… ==

    Oh grow up. That mantra by the uber crazy people in the CC debate is getting old.

  45. - Just Observing - Tuesday, Nov 26, 13 @ 2:56 pm:

    === “Cook County clerk David Orr has said that he will comply with the court’s order, noting that expedited marriage licenses are granted to heterosexuals in similar situations.”

    What is the similar situation? ===

    I imagine if one part of a couple was dying, and they wanted to be married, Orr’s office would expedite the license in a day or so, rather than 30 days (or whatever the time period is).

  46. - Wensicia - Tuesday, Nov 26, 13 @ 4:24 pm:

    The governor signed gay marriage into law last week; I don’t have a problem with this judge making an exception before the effective date in this extreme circumstance. I don’t think it sets a precedent concerning other laws.

  47. - Oswego Willy - Tuesday, Nov 26, 13 @ 4:42 pm:

    If this decision is a “stand alone” ruling for this very specific case, for these very specific people, I can understand the ruling, and I can even sympathize and empathize with the plight. I can even agree.

    I can also be a bit “troubled” considering the Illinois Constitution is clear.

    I am happy for them, I hope this is a “stand alone” ruling, and I am “troubled” to the triviality of how the Constitution here in Illinois was looked upon, very specifically to this ruling. For me, all those apply.

  48. - Bad Karma - Tuesday, Nov 26, 13 @ 10:21 pm:

    Rich, you misunderstand the ruling. The judge didn’t do anything with the new law. Rather, he enjoined the clerk from enforcing the old law. A subtle, but huge, difference.

  49. - Rarely Posts - Wednesday, Nov 27, 13 @ 8:46 am:

    @Bad Karma: That’s exactly what I’ve been saying.
    @Oswego Willy: The judge said *NOTHING* about the Illinois Constitution. The ruling was based upon the theory that the Illinois Marriage Act (which prohibits same-sex marriage) was unconstitutional under the U.S. constitution. So it allows the two specific plaintiffs to be married pending the outcome of the litigation. Period.

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