Gray et al v. Orr
Filing
24
MEMORANDUM Opinion and Order:When balancing the equities as the Court is required to do, the Court concludes that the requested injunctive relief is the only equitable result. Signed by the Honorable Thomas M. Durkin on 12/5/2013:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VERNITA GRAY AND PATRICIA EWERT,
Plaintiffs,
and
PEOPLE OF THE STATE OF ILLINOIS
EX REL. LISA MADIGAN, ATTORNEY GENERAL
OF ILLINOIS,
v.
Intervenor,
DAVID ORR, IN HIS OFFICIAL CAPACITY AS
COOK COUNTY CLERK,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 13 C 8449
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Under current Illinois law, same-sex partners cannot be married. That will
change on June 1, 2014. On that date, Illinois will recognize marriages between
same-sex partners. Between now and then, however, same-sex couples must wait to
marry in Illinois and also wait to have their lawful marriages in other states
recognized in Illinois. Due to extraordinary and compelling circumstances, Plaintiffs
Vernita Gray and Patricia Ewert asked this Court to order Defendant Cook County
Clerk David Orr to issue them a marriage license and allow them to marry in
Illinois before June 1, 2014.
The issue presented here is a narrow one: whether the State of Illinois has
any remaining governmental interest in a law prohibiting same-sex marriage when
1
it has effectively disavowed any prior justification for that law by enacting a new
law that will allow same-sex couples to marry. Underlying that narrow issue is the
even narrower issue of when balancing the equities in this case, have Plaintiffs
demonstrated a sufficient likelihood of success on the merits of their as-applied
equal protection challenge to the current Illinois law prohibiting same-sex marriage
such that temporary injunctive relief should be granted.
On November 25, 2013, the Court held a hearing on Plaintiffs’ motion for a
temporary restraining order (“TRO”). Following lengthy argument from, and
discussion with, the parties, this Court granted the TRO that day, finding that the
balancing of equities and hardships weighed strongly in Plaintiffs’ favor. R. 21. This
Order memorializes the oral findings the Court made at the hearing on Plaintiffs’
motion. 1
Factual Background
For purposes of evaluating Plaintiffs’ request for a TRO, the following facts
are taken as true. See Ridge Chrysler Jeep, LLC v. Daimler Chrysler Servs. North
Am., LLC, No. 03 C 760, 2006 WL 2808158, at *8 (N.D. Ill. Sept. 6, 2006); see also
Fed. R. Civ. P. 65(b)(1)(A). The facts of this case are compelling. Plaintiffs Vernita
Gray and Patricia Ewert are Chicago residents who have been in a committed
relationship for more than five years. When the Illinois General Assembly
authorized civil unions for gay and lesbian couples in 2011, Gray and Ewert
Following the entry of the TRO, Plaintiffs married in Cook County on November
27, 2013.
1
2
expressed their commitment to each other by joining in such a union, taking part in
both civil and religious ceremonies. Gray is now terminally ill with cancer and does
not have long to live. Sadly, Gray may only have weeks to live. She and Ewert wish
to marry before Gray passes away. A marriage recognized under Illinois law would
allow Gray and Ewert to enjoy the same personal, emotional benefits and
satisfactions that accrue to couples whose marriages are recognized by society and
the State. A marriage recognized under Illinois law would also entitle Ewert to
make health decisions on Gray’s behalf and receive survivor benefits, including
social security and estate tax benefits.
As it stands, current Illinois law prohibits marriages between two individuals
of the same sex. 750 ILCS 5/212(a)(5). On November 5, 2013, the General Assembly
passed Public Act 98-597 (Senate Bill 10), which amended the Illinois Marriage and
Dissolution of Marriage Act to permit same-sex couples to legally marry in Illinois.
The Governor of Illinois signed this bill into law on November 20, 2013. This
amendment did not become effective immediately, however. Instead, the
amendment becomes effective on June 1, 2014. See Ill. Const. art. IV, § 10. Gray’s
illness will almost certainly prevent her from living until that date. Given the
seriousness of Gray’s medical condition, Ewert called the Office of the Cook County
Clerk, inquiring about whether the Clerk would issue a marriage license to a samesex couple before June 1, 2014. An employee informed Ewert that the Clerk could
not issue that license before that date.
3
Soon thereafter, Plaintiffs filed a two-count complaint against Defendant
Clerk Orr, raising both a facial and as-applied constitutional challenge to the
current Illinois law. They allege that the law violates both the Due Process and
Equal Protection Clauses of the Fourteenth Amendment to the United States
Constitution. Plaintiffs also requested that the Court issue a TRO and a
preliminary injunction prohibiting Clerk Orr from enforcing the Illinois statutes
excluding lesbian and gay couples from marrying in Illinois as applied to them,
ordering Clerk Orr to issue a marriage license to Plaintiffs, and requiring Clerk Orr
to register their solemnized marriage in the same manner as all other marriages in
Illinois are registered. The Illinois Attorney General moved to intervene in the
litigation, but not to defend the constitutionality of the Illinois law. Rather, the
Illinois Attorney General joined in Plaintiffs’ claim that the current Illinois law
prohibiting same-sex marriage discriminates against individuals who wish to marry
based on their sexual orientation and that such discrimination violates the Equal
Protection Clause as applied to Plaintiffs.
On November 25, 2013, the Court held a hearing on Plaintiffs’ motion. At the
hearing, Plaintiffs stressed the urgency of Gray’s medical condition. The Illinois
Attorney General reiterated that the State did not object to the injunctive relief
Plaintiffs sought; nor would such relief, the State represented, disserve the public
interest. Clerk Orr, through his counsel the Cook County State’s Attorney, indicated
his desire to immediately issue a marriage license to Plaintiffs but his
4
unwillingness to do so absent a court order given the constraints imposed by the
current law.
Legal Standard
In determining whether to grant preliminary injunctive relief, this Court
must, as a threshold matter, determine whether the moving party has
demonstrated: (1) some likelihood of success on the merits of the underlying claim;
(2) the absence of an adequate remedy at law; and (3) the suffering of irreparable
harm if preliminary relief is denied. Abbott Labs. v. Mead Johnson & Co., 971 F.2d
6, 11 (7th Cir. 1992).
If the moving party clears these thresholds, the Court then balances the
harm to the non-moving party if preliminary relief is granted against the harm to
the moving party if relief is denied, and further considers the consequences to the
public interest of granting or denying relief. 2 Id. at 11-12. This equitable balancing
process employed by the Seventh Circuit involves a “sliding scale” analysis,
“weighting harm to a party by the merit of [her] case,” Cavel Int’l, Inc. v. Madigan,
500 F.3d 544, 547 (7th Cir. 2007), with the aim “to minimize the costs of a wrong
decision,” Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013). “The strength of the
moving party’s likelihood of success on the merits affects the balance of harms.”
Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699
F.3d 962, 972 (7th Cir. 2012); see also Abbott, 971 F.2d at 12 (“[T]he more likely it is
the plaintiff will succeed on the merits, the less the balance of irreparable harms
The standards for issuing a TRO are identical to those for a preliminary
injunction. Long v. Bd. of Educ., Dist. 128, 167 F. Supp. 2d 988, 990 (N.D. Ill. 2001).
2
5
need weigh towards its side; the less likely it is the plaintiff will succeed, the more
the balance need weigh towards its side.”). In other words:
Irreparable injury is not enough to support equitable relief. There also
must be a plausible claim on the merits, and the injunction must do
more good than harm (which is to say that the “balance of equities”
favors the plaintiff). How strong a claim on the merits is enough
depends on the balance of harm: the more net harm an injunction can
prevent, the weaker the plaintiff’s claim on the merits can be while
still supporting some preliminary relief.
Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721,
725 (7th Cir. 2009) (internal citations omitted).
Analysis
At the outset, the Court briefly addresses the question of whether Plaintiffs
have standing to pursue this litigation. Constitutional standing is a jurisdictional
inquiry; indeed it is “an essential component of Article III’s case-or-controversy
requirement.” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir.
2009); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Article III
standing requires a: (1) concrete injury-in-fact; (2) causal connection between the
injury and the conduct complained of; and (3) likelihood that the injury will be
redressed by a favorable decision. Lujan, 504 U.S. at 560-61; see also United States
v. Windsor, — U.S. —, 133 S. Ct. 2675, 2685-86 (2013). There are also prudential
limitations to a federal court’s exercise of jurisdiction, but these rules “are more
judicially self-imposed limits on the exercise of federal jurisdiction.” Windsor, 133 S.
Ct. at 2685 (internal quotation marks omitted). As the parties invoking federal
6
jurisdiction, Plaintiffs bear the burden of establishing that they have standing.
Lujan, 504 U.S. at 561.
Plaintiffs here have suffered a concrete redressable injury. Clerk Orr has
represented to the Court that given the current state of Illinois law, which neither
allows nor recognizes same-sex marriages, he cannot issue Plaintiffs a marriage
license absent a court order. Clerk Orr maintains this position despite the Illinois
Attorney
General’s
representation
that
the
State
is
not
defending
the
constitutionality of the current Illinois law as applied to these two plaintiffs.
Accordingly, because Plaintiffs have suffered a “concrete, persisting, and
unredressed” injury, Article III standing exists. See Windsor, 133 S. Ct. at 2685.
The Illinois Attorney General’s decision not to defend the constitutionality of
the Illinois law in court while County Clerk Orr continues to deny a marriage
license to Plaintiffs presents a prudential limitation on the exercise of jurisdiction.
But such a prudential limitation does not deprive the Court from exercising Article
III jurisdiction. Indeed, the procedural posture here is similar to the posture of the
parties in Windsor. And there, the Supreme Court concluded that Article III
standing existed in the district court despite the Government’s position to agree
with Windsor’s legal claim and yet refuse to give it legal effect. Id. at 2684-85, 268687 (relying on reasoning of INS v. Chadha, 462 U.S. 919 (1983)). Accordingly, a
justiciable controversy under Article III exists.
Both the Illinois Attorney General and Clerk Orr have represented that they
agree with Plaintiffs’ as-applied equal protection challenge to the current Illinois
7
law prohibiting marriages between same-sex partners. They submit that the
current Illinois law discriminates against individuals who wish to marry based on
their sexual orientation, and that the law, which classifies on the basis of sexual
orientation, should be subjected to heightened equal protection scrutiny.
Alternatively, they contend that the discrimination underpinning the current
Illinois law cannot, as applied to Plaintiffs, withstand a rational basis review.
Because Plaintiffs’ equal protection claim is the claim on which the parties focus,
that is where the Court will direct its attention.
In 1977, Illinois passed the Illinois Marriage and Dissolution of Marriage Act.
See Public Act 80-293; Ill. Rev. Stat. 1977, ch. 40, § 101, et seq. Although the Act did
not explicitly prohibit same-sex couples from being married, Ill. Rev. Stat. 1977, ch.
40, § 212, that was the understanding when the legislation was passed, see 80th Ill.
Gen. Assem., Senate, Transcript of May 19, 1977, at 286-87. Nearly twenty years
later, Illinois amended its Marriage Act to explicitly prohibit same-sex marriages,
750 ILCS 5/212(a)(5) (2006), and to declare same-sex marriages to be contrary to
Illinois public policy, see Public Act 89-459; 750 ILCS 5/213.1 (2006).
In 2011, the Illinois General Assembly authorized “civil unions” for gay and
lesbian partners, granting those couples the same rights and privileges under
Illinois law afforded to opposite-sex married couples except the right to marital
status and the federal rights that accompany that status. See Public Act 96-1513;
750 ILCS 75/10. Recently, the General Assembly passed, and Governor Quinn
signed into law, Senate Bill 10, which permits same-sex marriages. Because Senate
8
Bill 10 was passed after May 31, 2013—it was passed by both General Assembly
bodies on November 5, 2013—it could not become effective prior to June 1 of the
next calendar year (i.e. 2014) absent a three-fifths vote from the members of each
house of the General Assembly providing for an earlier effective date. See Ill. Const.
art. IV, § 10. 3 The General Assembly did not provide for an earlier effective date in
Senate Bill 10, and the bill thus becomes effective on June 1, 2014.
Against this backdrop, Plaintiffs seek preliminary injunctive relief, arguing
that if forced to wait to marry until June 1, 2014, they will suffer real, immediate,
and irreparable harm for which there will be no adequate remedy at law. Given
Gray’s medical condition and imminent death, Gray and Ewert may not be able to
wait to marry until June 1, 2014 or until final resolution of their claims on the
merits. Should Gray pass away before either of these two events, Gray and Ewert
will never be able to obtain the relief they seek here. Accordingly, Plaintiffs have
cleared the initial threshold of demonstrating entitlement to temporary injunctive
relief by showing the absence of an adequate of remedy at law should temporary
relief be denied.
Plaintiffs have further demonstrated that absent temporary injunctive relief,
irreparable injury would result. Concomitant with official marriage status conferred
Section 10 of Article IV of the Illinois Constitution provides: “The General
Assembly shall provide by law for a uniform effective date for laws passed prior to
June 1 of a calendar year. The General Assembly may provide for a different
effective date in any law passed prior to June 1. 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.”
3
9
under Illinois law are important federal rights and benefits, including for example,
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. See Windsor, 133 S. Ct. at 2692-96 (holding
that federal laws based on marriage status must apply to same-sex marriages
recognized under state law). Marriage will thus confer concrete financial benefits to
Plaintiffs, and denying Gray and Ewert the opportunity to marry before Gray
passes away will cause irreparable harm by preventing them from realizing those
benefits. Equally, if not more, compelling is Plaintiffs’ argument that without
temporary relief, they will also be deprived of enjoying the less tangible but
nonetheless significant personal and emotional benefits that the dignity of official
marriage status confers. See id. at 2692 (stating that a state’s recognition of samesex marriage “is more than a routine classification for purposes of certain statutory
benefits” but is a status that is a “far-reaching legal acknowledgement of the
intimate relationship between two people, a relationship deemed by the State
worthy of dignity in the community equal with all other marriages”). Ultimately, by
passing Senate Bill 10, the General Assembly has officially recognized the value of
all the benefits that official marriage status imparts and determined that these are
benefits same-sex couples are entitled to enjoy.
Plaintiffs claim that they are likely to succeed on the merits of their equal
protection claim as applied to them. Windsor certainly informs the analysis of the
10
merits. In Windsor, the Supreme Court invalidated section 3 of the Federal Defense
of Marriage Act (“DOMA”), and in doing so, gave married same-sex couples the
same rights under federal law as those now enjoyed by opposite-sex couples. 133 S.
Ct. at 2695-96. In reaching this conclusion, the Court denounced section 3 of DOMA,
which was based on legislative “animus” toward gays and lesbians, as having “no
legitimate purpose”:
DOMA seeks to injure the very class [of married gay couples that] New
York seeks to protect. By doing so it violates basic due process and
equal protection principles applicable to the Federal Government. The
Constitution’s guarantee of equality must at the very least mean that a
bare congressional desire to harm a politically unpopular group cannot
justify disparate treatment of that group.
Id. at 2693 (internal quotation marks and citations omitted), 2696; see also id. at
2694 (stating that “DOMA’s principal effect is to identify a subset of statesanctioned marriages and make them unequal” and noting that DOMA “tells [samesex] couples, and all the world, that their otherwise valid marriages are unworthy of
federal recognition”). 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. See 80th Ill. Gen. Assem.,
Senate, Transcript of May 19, 1977, at 286-87; Public Act 89-459, 89th Ill. Gen.
Assem., Senate, Transcript of Mar. 28, 1996, at 97, 100-101.
Further informing the analysis is the fact that on November 5, 2013, the
Illinois General Assembly recognized marriage (and the rights and privileges that
come with it) as a fundamental right to which same-sex couples are entitled.
Despite this recognition, however, same-sex couples must still wait until June 1,
11
2014 to enjoy that right. Any policy justification for the current Illinois law has been
undercut and since rejected by the Illinois General Assembly with its passage of
Senate
Bill
10,
which
now
seeks
to
protect
same-sex
couples.
See
new.livestream.com/blueroomstream/events/2448173 (98th Ill. Gen. Assem., House,
Livestream Debate of Nov. 5, 2013). 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.
Both the balance of harms and the public interest as determined by the
people of the State of Illinois—the two other components of the preliminary
injunctive relief calculus—weigh heavily in favor of granting temporary injunctive
12
relief. Should a final determination of Plaintiffs’ equal protection claim reveal that
it has no merit, the harm to Clerk Orr and the State of Illinois by permitting Gray
and Ewert to marry would be relatively minor. Given the Illinois General
Assembly’s enactment of Senate Bill 10, any harm by an erroneous decision only
results in moving up the date for them to marry by a relatively short period of time.
Far weightier is the harm that will be done to Plaintiffs should the injunction not
issue and Plaintiffs are forced to wait until the end of the suit for relief, relief which
could be moot as to Plaintiffs should Gray pass beforehand.
For similar reasons, the public interest is not disserved by granting
temporary injunctive relief given these compelling circumstances. Indeed, the
Illinois Attorney General, the State’s chief law enforcement officer charged with
defending the State’s interests, has disavowed any interest the State has in
defending the constitutionality of the current Illinois law as applied to these
Plaintiffs and has instead argued that the public interest is advanced, not thwarted,
by granting the requested injunctive relief. The General Assembly has officially
extended the institution of marriage to same-sex couples and, by doing so, has
demonstrated its belief that such a policy serves the public interest. On June 1,
2014, Clerk Orr will be required to issue marriage licenses to, and register the
solemnized marriages of, same-sex couples. In light of this fact, the Court is hardpressed to articulate a reason why the public interest would be disserved by
allowing Gray and Ewert, given their compelling circumstances, to marry a few
months earlier than permitted under the current timeline. At bottom, the harm
13
Plaintiffs will suffer should relief not be granted far outweighs what little harm, if
any, the State will suffer as a result of granting temporary relief.
Balancing the equities and hardships strongly militates in favoring of
granting temporary injunctive relief. At this balancing stage, though, the Court
must still weigh in its analysis the strength of Plaintiffs’ likelihood of success on the
merits against the balancing of harms. 4 Given that the balancing of harms strongly
weighs in favor of granting Plaintiffs the temporary injunctive relief they request,
only a lesser showing of likelihood of success on the merits is required here. See
Abbott, 971 F.3d at 12. Plaintiffs have demonstrated that their likelihood of success
in challenging the constitutionality of the current Illinois law prohibiting same-sex
marriage as applied to them is at least plausible. And, given the irremediable harm
to Plaintiffs that would result from delaying injunctive relief, as well as the
comparatively minor harm that granting injunctive relief would cause Clerk Orr
and the State of Illinois, plausibility is all that is required at this stage. See Hoosier
Energy, 582 F.3d at 725.
At the threshold stage, Plaintiffs must demonstrate that there is some likelihood
of success on the merits. Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 314 n. 1
(7th Cir. 1994). It is at the later balancing stage that the court determines how
great that likelihood is. Id.
4
14
Conclusion
It must be noted that the relief granted here is limited and extends no
further than Vernita Gray and Patricia Ewert. The parties are in agreement on this
point. 5 To be sure, Plaintiffs seek a broader ruling from this Court that the current
Illinois law is facially unconstitutional because it violates the Due Process and
Equal Protection Clauses. That request may be moot in light of this Order. But the
request for temporary injunctive relief applies solely to Gray and Ewert. The Court
has found after weighing all the factors applicable to determining whether
injunctive relief should issue, that given the compelling circumstances surrounding
Gray’s medical condition and her potentially imminent death, the injury she and
Ewert would suffer by denying injunctive relief would be irreparably great. When
balancing the equities as the Court is required to do, the Court concludes that the
requested injunctive relief is the only equitable result.
ENTERED:
Thomas M. Durkin
United States District Judge
Dated: December 5, 2013
Indeed, Clerk Orr has represented that despite the ruling granting injunctive
relief in this case, absent a ruling that the current Illinois law is facially
unconstitutional, he will continue to deny same-sex couples marriage licenses until
Senate Bill 10 becomes effective on June 1, 2014.
5
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?