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Is This the First Illinois Gay Marriage? Federal Judge Says Yes

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It has made big news in Illinois that the legislature approved legalizing same sex marriage. The law goes into effect in June, causing many couples a great deal of anticipation. Legally we've found this to be an interesting issue, naturally, given our practice in family law - yes, divorce, but also adoption. People are wondering how the laws will change.

The answer is actually "not a whole lot." But when the Chicago Tribune reported that a couple is already cleared to marry, it now appears that the time for answering this question has arrived. In an article you can find HERE (Click), the Tribune reports about a federal judge who required a Chicago circuit clerk to issue a marriage license to a lesbian couple immediately and prior to the change in Illinois law. The article states, "Gray, 64, and Ewert, 65, filed a lawsuit Friday in U.S. District Court arguing that they should be granted the right to marry immediately." And U.S. District Judge Thomas Durkin granted just that.

As attorneys, we found this interesting: how did they preempt the Illinois legislature's designated start date by going to federal court? And more importantly to those we represent locally, can we do this?

We dug up the federal filings, which if you're curious, can be read here by clicking on the following links:

1. (Their initial filing, the Complaint) Vernita Gray Same Sex Federal Decl COMPLAINT

2. (Their legal argument in support) Memorandum in Support Same Sex Federal COMPLAINT

One of the ladies had cancer, which means they potentially can't afford to wait until June to marry. This fact allowed them to argue that requiring them to wait for the official change in law would cause them "irreparable harm." This is a legal buzzword that would allow a judge to issue an injunction, i.e. an order requiring a certain action to occur. In this case, they could forever lose the ability to marry, and with it government benefits like social security and FMLA. There could be other effects too, such as losing privileges and the ability to make medical decisions at the hospital during cancer treatments. The judge agreed, and required that they be allowed to marry. The Cook County clerk delivered a marriage certificate late Monday night.

So can others preempt the June start date for our new law? We see a blueprint here for others in difficult, time-sensitive situations, such as a terminal illness. If there's no particular need for marriage other than the simple annoyance of additional time delay, then there's probably no way to get federal relief.

Looking ahead, we also wonder whether the legislature will have to revise the IMDMA (Illinois Marriage and Dissolution of Marriage Act) to incorporate the new same-sex situations. The immediate change will clearly have to occur at the beginning of that Act, 750 ILCS 5/201. As the couple's request to the federal court notes, right now we still have on the books an express prohibition of marriage "between 2 individuals of the same sex" as contrary to "public policy of this state" (at 5/213.1), and our state only authorizes marriages "between a man and a woman" in 201. We don't give full credit to same-sex marriages of same-sex couples that are completed in other states; those are merely civil unions (750 ILCS 75/60), and Illinois doesn't recognize common law marriage either (5/214).

Clearly, these sections must change. They are at complete odds with the new law. These changes should be easy and cosmetic. So what else must change, if anything? Property laws use the generic terminology "spouse" and are not gender-specific. Custody and visitation laws use the terminology of "parent" or "custodian." Meanwhile, adoption law already allows for unmarried ("co-parent") and same-sex couple adoptions, which our law firm has completed in the past, and these would create a means for children to enter these now-authorized same sex marriages. The language of the laws themselves already has the necessary flexibility without a foundational re-write.

Thinking aloud, some of the more unique novelties that would not require rewriting laws, but which may arise, could be:

- Paternity law collisions with Marriage law. Right now, a man married to a woman who has a child is presumed to be the legal father. So what if a male in a same-sex marriage has a child with a woman as a fling . . . who is the child presumed to belong to then?

- Domestic violence situations, which always have great bearing on custody determinations, have an arguably different dynamic where spouses are more evenly matched - or where spouses equally participate.

- Bi-sexual parents who enter a same-sex marriage, divorce, and remarry heterosexually, and then argue under the best interest standard for custody that the child is comparatively better in the second, heterosexual environment provided by remarriage.

- Currently, and for all years prior to now, a gay marriage is "null and void for all purposes." So how will the new law work retroactively in, for example, property disputes that involve marital and non-marital property? Same-sex couples who, for example, enter a marriage with jointly owned property and subsequently divorce could argue that it's non-marital despite the communal ownership because Illinois law didn't recognize anything else at the time of acquisition.

- In adoptions, birth parents or adoption agency favoritism or preference toward heterosexual adoptive parents could come under stronger fire from legitimated homosexual couples seeking to adopt that are passed over.

It's often tough to imagine all the different the kinks and quirks that arise out of laws that appear to be plainly written. We can say now that the laws appear ready and able to embrace same-sex marriage basically as they are currently written, but there's no telling what unique circumstances and creative argument might bring.

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