As Illinois nears the end of the first year of the Religious Freedom Protection and Civil Union Act, the General Assembly is gearing up for a debate about same-sex marriage. Civil unions may grant same-sex couples many of the same rights and responsibilities that a married couple has — including the right to divorce — but, for proponents, it is not marriage. This is not the only state dealing with the issue, either.
Legal analysts and policy wonks expect to see the issue at the U.S. Supreme Court soon. At least two federal appellate cases have garnered national attention. Because they approach the issue from two different perspectives — one looking at state law, the other at federal law — there’s no reason both couldn’t appear on the docket this term or next.
The first case is a challenge to California’s Proposition 8, the 2008 ballot initiative that added a constitutional amendment limiting marriage to one man and one woman. The recent decision by the 9th U.S. Circuit Court of Appeals may have spurred Illinois lawmakers to file the same-sex marriage bill a year ahead of plan. The appellate panel agreed with the lower court that Prop 8 is unconstitutional.
The decision was narrowly tailored to that state’s constitution. In 2008, before Prop 8, the state’s Supreme Court had determined that the state constitution guaranteed gays and lesbians “both the incidents and status and dignity of marriage.” Prop 8 would have eliminated the status of marriage without eliminating the incidents of marriage, the majority said, and proponents of the amendment did not convince them that there was a rational basis to do so.
Again, the decision was narrow in its scope. The panel did not say that same-sex couples have the absolute right to marry under the constitution.
To be continued.
Source: Law.com, “High court in marriage cross hairs,” Marcia Coyle, Feb. 13, 2012