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Judiciary action saves the day for same-sex couples seeking marriage in Illinois

Chicago attorney Betty Tsamis weighs in on role of the judiciary in same-sex victories for marriage equality
Betty Tsamis

“Victory has 100 fathers and defeat is an orphan,” said President John F. Kennedy over 50 years ago, after the Bay of Pigs disaster; yet the victories that same-sex marriage advocates have seen over the last few years, and the support that they have received from seemingly hundreds of judicial fathers – and mothers - has made the lives of many same-sex couples who have dreamt of victory that much sweeter.

And, in Illinois, couples residing in Cook County, this past Friday, now no longer have to wait to June, as originally designated by state lawmakers, because of a ruling from U.S. District Judge Sharon Johnson Coleman who wrote as reported in the Chicago Tribune, "there is no reason to delay further when no opposition has been presented to this Court and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry."

The news spread like wildfire throughout Cook County, where it currently applies, and couples across the county, some who were alerted by social media of the ruling made plans to go to the Cook County Clerk’s office to marry, some even that very day.

One particular aspect of the move towards marriage equality and that is the role of the judiciary who in more cases than not have advanced the cause, and gave unheralded support to these couples, in their desire to get married.

I spoke with Chicago lawyer, and former aldermanic candidate, Betty Tsamis, a partnered lesbian, who told me in response to my questions, related to the role that previously many conservative opponents derided as “judicial activism,” “I am thankful for our American system of justice which is the envy of the world. Civil rights cannot be entrusted to the whims of voters or legislators alone. Thankfully the judicial branch of our government serves as stop-gap and evaluates laws based on constitutional notions of fair play and equity.”

Coleman’s decision has been preceded by other judges on both the federal, and circuit courts who have given their weigh to the cause that so many have worked tirelessly over the last few decades, most notably the U.S. Supreme Court when it struck down DOMA – the Defense of Marriage Act – and as I noted in November of last year:

“Nationwide, where there are 14 states that allow same-sex couples to marry, events were moving swiftly to support the groundswell of support in Illinois, where Democrats control the House and the Senate, plus the governor’s office; the most notable of which was the Windsor case heard by the U.S. Supreme Court “struck down a key part of a law that denies to legally married same-sex couples the same federal benefits provided to heterosexual spouses.”

This watershed moment not only struck down the much maligned Defense of Marriage Act (DOMA) but also helped propel state lawmakers, Illinois included into further recognizing the needs of same-sex couples.

There seems to be a tighter focus on state and federal constructs, and I asked Tsamis whether this was a direction that sprang from the bench, or was a fresh approach at the role that the judiciary can play in social politics, and whether this was the case in Illinois.

She unequivocally noted that “the judiciary has always served as the gatekeeper of our justice system. In looking back at civil rights history, the true sea changes have occurred via the courts--whether the courts are enforcing or striking down new legislation or reinterpreting existing legislation such as the Equal Protection Clause.”

While the arguments in favor of same-sex marriage hinge on the 14th Amendment of the US Constitution, which was passed to ensure the passage, and preservation of the 1866 Civil Rights Act, it was also used during the apex of the Negro Civil Rights movement in the mid-1960s, to guarantee the rights of black Americans, a fact that has not been lost on those that advocate for marriage equality.

In fact, the opposition has begun to recognize the expansion the success of the marriage equality movement and the support by the judges.

Bernard Cherkasov, CEO of Equality Illinois, a statewide LGBT advocacy organization said in a statement released Sunday: "The developments on Friday again reinforce the successful dual-track legislative and judicial strategy for attaining marriage equality in Illinois," Cherkasov said. "But our work is not done. We have seen in other states that marriage opponents have tried to carve out more exemptions and weaken the law, and we must remain vigilant that does not occur in Illinois."

Cherkasov also noted in his statement that, “State Sen. Kyle McCarter (R-Lebanon) on Friday night acknowledged the futility of continuing to try to overturn the marriage law and announced he was ending his effort to repeal it. The bill had been scheduled for a hearing on Wednesday before the Senate Executive Committee. And in his statement, McCarter, too, said he expected actions in other counties to force them to begin issuing marriage licenses to same-sex couples sooner than the June 1 effective date of the law.”

Tsamis agrees and when asked if there were predictions that she might make for future legislation, “The arc of justice will continue to travel toward giving LGBT people equal treatment under the law in terms of marriage equality. An interesting subset of discrimination had evolved from the fight for marriage equality and that is backlash laws allowing for public accommodations discrimination of LGBT people on the basis of religion. I believe these backlash laws will be tested in the courts and eventually found to be unlawful.”

Recently the United States Attorney General Eric Holder, used his considerable influence to ensure that same-sex couples, have equal support for same-sex spousal rights - and as reported by CNN: "In a major milestone for gay rights, the U.S. government on Monday expanded recognition of same-sex marriages in federal legal matters, including bankruptcies, prison visits and survivor benefits."

So if it seems as if the die is cast on the federal level and I wondered if it would be reflected in the lives of millions of same-sex couples across the nation and asked Tsamis how can grass-roots advocates build on the success seen at the federal level? “The LGBT civil rights movement has always relied on grassroots advocacy. Even though we are now a powerful, polished movement made up of well-organized factions our grass roots activists can work within their immediate communities. One of the single most powerful acts of advocacy is coming out. Many people are unsupportive or indifferent to LGBT equality until they realize someone they care about is LGBT,” she said.

Coming out may be, as Tsamis notes, the linchpin of the recognition of gay and lesbian marriage equality rights, but it also gives impetus to the changing social landscape of a progressive nation, in one of the most sensitive aspects of human behavior: marriage.

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