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Garden State judge’s ruling on same-sex marriages could serve as indicator of what happens in Illinois

Updated: October 30, 2013 6:49AM

Eight months after allowing gay and lesbian couples in New Jersey to proceed with a lawsuit seeking the freedom to marry, a Garden State judge ruled in their favor Friday and ordered officials to begin issuing marriage licenses to same-sex couples by Oct. 21.

Also on Friday, a Cook County judge allowed 25 gay and lesbian couples in Illinois to proceed with their own lawsuit seeking the freedom to marry.

Do you detect a pattern here?

Assuming that the Illinois case proceeds at the same pace and with the same outcome, that could mean gays and lesbians in Illinois would be looking at a court-sanctioned right to wed by June of 2014.

To be clear, there’s really no reason to assume the New Jersey court case, which undoubtedly will be appealed, will be predictive of what happens in Illinois. Lawyers fighting gay marriage argue they expect to ultimately prevail in the Illinois lawsuit.

Still, the New Jersey fight is a valid indicator of how the matter might unfold here.

While public attention has been focused on same-sex couples campaigning in the Illinois Legislature for the right to marry, advocates of marriage equality have been pursuing an alternative strategy through the courts with less fanfare.

They took a similar approach in New Jersey, where the lawsuit over same-sex marriage proceeded even as state lawmakers there approved their own marriage equality bill only to see it subsequently vetoed by Gov. Chris Christie.

It has appeared for some time now that Illinois legislators were also on the verge of sending a same-sex marriage bill to Gov. Pat Quinn, who has promised to sign it.

But as the legislative fight continues to drag out, with no assurance the matter will even be brought to a vote in the upcoming fall veto session, we should expect more attention to be paid to the court battle.

I’ve always argued it would be preferable to win the gay marriage debate in the Legislature than in the courts and still believe that. Better in the long run to have an affirmative statement that the public has come around to accept the idea than for opponents to blame “activist” courts for forcing the change down their throats.

But same-sex marriage advocates say obtaining the right to marry through the courts is equally valid to legislative action — and they’ll happily accept a victory either way.

Indeed, courts have often led the way on such controversial issues, with public opinion only coming around later. In this case, many polls show the public has moved ahead of the decision-makers in support of gay marriage.

Until now, the thinking in Illinois was that the Legislature would move more quickly than the courts. That’s still the hope of most same-sex marriage advocates, some of whom worry that reluctant legislators will gladly defer consideration of the controversial legislation if they think “the courts will take care of it.”

That last thing same-sex marriage supporters want is for legislators to have another excuse to do nothing, but the time for slow-walking the court cases may be past as lawyers seek to capitalize on the momentum created by the U.S. Supreme Court’s decision striking down the core of the Defense of Marriage Act.

Camilla Taylor, national marriage project director for Lambda Legal, is optimistic the Illinois court case could have a decision even sooner than the June time frame I suggested.

Taylor, who is involved with the both the New Jersey and Illinois lawsuits, was halfway through a celebratory glass of champagne when I caught up to her following Friday’s dual victory.

In the Illinois case, lawyers for Lambda Legal and the ACLU were given permission to continue pursuing their arguments that Illinois’ gay marriage ban violates the fundamental right of everyone to marry while also discriminating against gay and lesbian couples on the basis of sexual orientation.

Taylor sees no reason to differentiate between legislative victories and judicial victories in the fight for gays and lesbians to wed.

“We use every tool that’s available to us,” Taylor said.

That’s undoubtedly wise as I’ve noticed opponents will do the same.


Twitter: @MarkBrownCST

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