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Gray v. Orr

United States District Court, N.D. Illinois, Eastern Division

December 5, 2013

VERNITA GRAY AND PATRICIA EWERT, Plaintiffs, and PEOPLE OF THE STATE OF ILLINOIS EX REL. LISA MADIGAN, ATTORNEY GENERAL OF ILLINOIS, Intervenor,
v.
DAVID ORR, IN HIS OFFICIAL CAPACITY AS COOK COUNTY CLERK, Defendant

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[Copyrighted Material Omitted]

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For Vernita Gray, Patricia Ewert, Plaintiffs: Camilla Bronwen Taylor, LEAD ATTORNEY, Lambda Legal Defense & Education Fund, Inc., Chicago, IL; Harvey Michael Grossman, John A. Knight, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL; Karen A. Sheley, ACLU of Illinois, Chicago, IL; M. David Weisman, Marc Oliver Beem, Zachary J. Freeman, Miller Shakman & Beem LLP, Chicago, IL; Jordan Mitchell Heinz, Kirkland & Ellis LLP, Chicago, IL.

For David Orr, in his official capacity as Cook County Clerk, Defendant: Paul Leo Fangman, LEAD ATTORNEY, Cook County State's Attorney's Office, Chicago, IL; Kent Stephen Ray, Cook County State's Attorney's Office, Conflicts Counsel Unit, Chicago, IL.

For AG Lisa Madigan, Intervenor Plaintiff: Christopher J. Kim, Office Of The Attorney General - State Of Illinois, Chicago, IL; Malini Rao, Illinois Attorney General's Office (100 W), Chicago, IL; Richard Scott Huszagh, Office of the Attorney General, Chicago, IL.

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Memorandum Opinion And Order

Thomas M. Durkin, United States District Judge.

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 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

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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. DaimlerChrysler 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 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, ยง 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, ...


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