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Fight for Marriage Equality Delayed By Petitions to Intervene

by Christine Malcom
Contributor
Wednesday Oct 10, 2012
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Proceedings in a landmark case that could result in marriage equality for all Illinois couples were delayed last week by petitions to intervene from several groups, including the Illinois Family Institute (IFI), Grace Gospel Fellowship (GGF) of Bensenville and the Arlington Heights-based Church of Christian Liberty (CCL).

"I am concerned about keeping the cast appropriate. The chart of proposed speakers is becoming a book," said Circuit Court Judge Sophia Hall before hearing arguments from Bryan Beauman of the Alliance Defense Fund on behalf of IFI.

Oral arguments on a motion to dismiss the case were initially bumped from the September 27 hearing by IFI’s petition. Hall further continued all issues in the case until November 7, when she will hear further oral arguments on the petitions filed just days before the hearing by GGF and CCL.

"IFI’s petition meets the criterion for timeliness. We’re just getting started here," said Beauman. He added that Carol Stream-based group, who filed their petition back in July, would be correcting a "lopsidedness" of representation in the case. But Lambda Legal and ACLU Illinois, who are representing the couples in the consolidated case, disagree.

"We have a full dance card of appropriate parties. IFI has no different, underrepresented position," countered Emily Nicklin of Kirkland & Ellis, LLP, in her oral arguments on behalf of Lambda and ACLU. "In granting this petition for permissive intervention [Judge Hall] would be making new law in Illinois and nationally." Nicklin also denied Beauman’s claim of timeliness, pointing out that the petitions had already delayed arguments on the motion to dismiss.

Hall appeared sympathetic to Nicklin’s argument. She set a briefing schedule for both sides and expressed a preference to rule on all pending petitions at the November 7 hearing. However, parties can petition to intervene by permission at any time or at any level of the process, leaving open the possibility of further delay.

"There’s passion on both sides. It’s sensible for the court to get clarification on the points of view of the various parties and bring focus to the case. It’s moving along," said Christopher Clark of Lambda Legal.

"It’s complex litigation and there are complex issues. People have strong feelings, but we don’t buy the argument for multiple players simply because they care. This hearing is another step on the path, and we hope that the case can proceed at a pace that our clients deserve," said ACLU Illinois Director of Communications and Public Policy Edwin Yohnka.

If any or all of the petitions to intervene by permission is granted, the groups will join two downstate County Clerks in defending the 1996 Illinois law denying gay couples the right to marry. Christie Webb of Tazewell County and Kerry Hirtzel of Effingham County were granted uncontested permission to intervene by right.

"In granting this petition for permissive intervention [Judge Hall] would be making new law in Illinois and nationally," said Emily Nicklin of Kirkland & Ellis, LLP, in her oral arguments on behalf of Lambda and ACLU.

"I reiterate that my only response to a position is for the law to be uniform throughout the State of Illinois. State Constitutional issues need to be decided by the Illinois Supreme Court so that County Clerks throughout the State will have uniform law to follow," said Webb in response to EDGE’s request for comment on the petitions.

"The Clerks are not taking a position [on the petitions]," said Peter Breen of the Thomas More Society (TMS), which is representing Webb and Hirtzel in the case. "We’re glad everyone is allowed to be heard and we’re waiting for the judge’s ruling, but we have no position on them."

According to Beauman’s arguments, 46 parties, including the Catholic Conference of Illinois, the Lutheran Church-Missouri Synod, and the Moody Bible Church have filed amicus curiae briefs in support of Webb and Hirtzel. If the petitions for permissive intervention are denied, the arguments and briefings by IFI, GGF and CCL will likely be converted to amici. At the hearing, Nicklin voiced support from Lambda and ACLU Illinois for participation at this level.

"We welcome multiple voices, but the amicus role is the proper role," echoed Yohnka.

In early September, a bipartisan group of 11 Illinois legislators joined anti-gay groups in filing an amicus brief. The document cites issues of separation of governmental powers, hostility to religious minorities, and so-called "sociological arguments" regarding harm suffered by children of gay parents.

"It’s a pattern we’ve seen in California, in Florida, in Arkansas. It’s the same tired old saws about gay families and gay parents that have been completely refuted over and over again," Yohnka said, noting that ACLU Illinois anticipated such a filing, but found much of the language in the brief "shameful" and "disappointing."

"It’s loathsome to see legislators arguing in support of discrimination against their constituents. Fortunately, the overwhelming majority agree with us that there is no legal basis, no moral basis, to discriminate," said Clark.

On a positive note, Yohnka cited encouraging poll data released last week by the Paul Simon Public Policy Center showing increasing support for gay marriage in Illinois.

"It’s not just that the younger generation is more progressive. If you look at the demographics, it’s clear that people are changing their minds," he said, adding, "I think the remarkable fortitude and courage of people like our clients, who just want to be married, plays a part in that."

Christine Malcom is a Lecturer in Anthropology at Roosevelt University and Adjunct Faculty in Liberal Arts and Visual and Critical Studies at the School of the Art Institute of Chicago. She is a physical anthropologist, theater geek, and all-around pop culture enthusiast.

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