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INTERVENORS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO CERTIFY QUESTIONS OF LAW PURSUANT TO ILLINOIS SUPREME COURT RULE 308

INTERVENORS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO CERTIFY QUESTIONS OF LAW PURSUANT TO ILLINOIS SUPREME COURT RULE 308

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Published by Tom Ciesielka
In its Decision of September 27, 2013, this Court dismissed three of the plaintiffs’ state
constitutional claims challenging the Illinois statutes reserving marriage to opposite-sex couples and allowed two claims to stand. The two claims allowed to stand were brought under the due process and equal protection guarantees of art. I, § 2, of the Illinois Constitution. The grounds that the Court cited for sustaining these two remaining claims raise novel issues of Illinois law for which review under Supreme Court Rule 308 is appropriate, i.e., questions of law as to which
“there is substantial ground for difference of opinion and where an immediate appeal may
materially advance the ultimate termination of the litigation.” In re Estate of Luccio, 2012
Ill.App. 121153 ¶ 17 (citing Rule 308). Rule 308 review is especially appropriate where, as here, the Court itself has acknowledged that its disposition of Intervenors’ motion to dismiss required its consideration of multiple issues of first impression. Luccio, ¶ 18 (noting that certified question involved issue of first impression). Thus, certifying these questions for review now may materially advance the ultimate termination of the litigation, either by clarifying how the Court’s view of Illinois law should be applied (on a motion for summary judgment or at trial) or, in the alternative, confirming that Illinois law is not as the Court understands it, in which case plaintiffs’ remaining counts would be subject to dismissal.

Among the questions of first impression as to which there is “substantial ground for
difference of opinion” such that “an immediate appeal . . . may materially advance the ultimate termination of the litigation” are whether, under the Illinois Supreme Court’s “limited lockstep” doctrine, the United States Supreme Court’s summary disposition in Baker v. Nelson, 409 U.S. 810 (1972), is dispositive of plaintiffs’ state due process and equal protection claims; whether, under the state due process guarantee (art. I, § 2), same-sex couples have a fundamental right to
marry; and whether, for purposes of the state equal protection guarantee (art. I, § 2), homosexuals
1
should be treated as members of a suspect or quasi-suspect class. Among the subsidiary
questions of law as to which there is “substantial ground for difference of opinion” such that “an immediate appeal . . . may materially advance the ultimate termination of the litigation” include
whether § 212(a)(5) of the Illinois Marriage and Dissolution of Marriage Act discriminates on its face against homosexuals; whether the disproportionate impact § 212(a)(5) has on homosexuals who wish to marry resulted from an intent or purpose by the General Assembly to discriminate against homosexuals; and what criteria apply in determining whether a class should be treated as “suspect” or “quasi-suspect,” how those criteria are defined and what relative weight should be given to them.
Postponing resolution of these issues serves no purpose. As now framed, this case
presents questions of state constitutional law that inevitably will have to be decided by the
appellate court, if not the supreme court. Resolution of the questions of law proposed by the Intervenors now would provide critical guidance and clarity to this Court and the parties regarding the legal principles that will drive the outcome of this case, potentially dispose of or streamline the case and conserve scarce judicial resources.
In its Decision of September 27, 2013, this Court dismissed three of the plaintiffs’ state
constitutional claims challenging the Illinois statutes reserving marriage to opposite-sex couples and allowed two claims to stand. The two claims allowed to stand were brought under the due process and equal protection guarantees of art. I, § 2, of the Illinois Constitution. The grounds that the Court cited for sustaining these two remaining claims raise novel issues of Illinois law for which review under Supreme Court Rule 308 is appropriate, i.e., questions of law as to which
“there is substantial ground for difference of opinion and where an immediate appeal may
materially advance the ultimate termination of the litigation.” In re Estate of Luccio, 2012
Ill.App. 121153 ¶ 17 (citing Rule 308). Rule 308 review is especially appropriate where, as here, the Court itself has acknowledged that its disposition of Intervenors’ motion to dismiss required its consideration of multiple issues of first impression. Luccio, ¶ 18 (noting that certified question involved issue of first impression). Thus, certifying these questions for review now may materially advance the ultimate termination of the litigation, either by clarifying how the Court’s view of Illinois law should be applied (on a motion for summary judgment or at trial) or, in the alternative, confirming that Illinois law is not as the Court understands it, in which case plaintiffs’ remaining counts would be subject to dismissal.

Among the questions of first impression as to which there is “substantial ground for
difference of opinion” such that “an immediate appeal . . . may materially advance the ultimate termination of the litigation” are whether, under the Illinois Supreme Court’s “limited lockstep” doctrine, the United States Supreme Court’s summary disposition in Baker v. Nelson, 409 U.S. 810 (1972), is dispositive of plaintiffs’ state due process and equal protection claims; whether, under the state due process guarantee (art. I, § 2), same-sex couples have a fundamental right to
marry; and whether, for purposes of the state equal protection guarantee (art. I, § 2), homosexuals
1
should be treated as members of a suspect or quasi-suspect class. Among the subsidiary
questions of law as to which there is “substantial ground for difference of opinion” such that “an immediate appeal . . . may materially advance the ultimate termination of the litigation” include
whether § 212(a)(5) of the Illinois Marriage and Dissolution of Marriage Act discriminates on its face against homosexuals; whether the disproportionate impact § 212(a)(5) has on homosexuals who wish to marry resulted from an intent or purpose by the General Assembly to discriminate against homosexuals; and what criteria apply in determining whether a class should be treated as “suspect” or “quasi-suspect,” how those criteria are defined and what relative weight should be given to them.
Postponing resolution of these issues serves no purpose. As now framed, this case
presents questions of state constitutional law that inevitably will have to be decided by the
appellate court, if not the supreme court. Resolution of the questions of law proposed by the Intervenors now would provide critical guidance and clarity to this Court and the parties regarding the legal principles that will drive the outcome of this case, potentially dispose of or streamline the case and conserve scarce judicial resources.

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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION JAMES DARBY, et al., Plaintiffs, v.

DAVID ORR, in his official capacity as Cook County Clerk, Defendant. TANYA LAZARO, et al., Plaintiffs, v. DAVID ORR, in his official capacity as Cook County Clerk, Defendant. State of Illinois, ex rel. LISA MADIGAN, Attorney General of the State of Illinois, Intervenor, CHRISTIE WEBB, in her official capacity as Tazewell County Clerk, KERRY HIRTZEL, in his official capacity as Effingham County Clerk, DANIEL S. KUHN, in his official capacity as Putnam County Clerk, PATRICIA LYCAN, in her official capacity as Crawford County Clerk, and BRENDA BRITTON, in her official capacity as Clay County Clerk, Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case Nos. 12 CH 19718, 12 CH19719 Hon. Sophia Hall, Judge Presiding

INTERVENORS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO CERTIFY QUESTIONS OF LAW PURSUANT TO ILLINOIS SUPREME COURT RULE 308

In its Decision of September 27, 2013, this Court dismissed three of the plaintiffs’ state constitutional claims challenging the Illinois statutes reserving marriage to opposite-sex couples and allowed two claims to stand. The two claims allowed to stand were brought under the due process and equal protection guarantees of art. I, § 2, of the Illinois Constitution. The grounds that the Court cited for sustaining these two remaining claims raise novel issues of Illinois law for which review under Supreme Court Rule 308 is appropriate, i.e., questions of law as to which “there is substantial ground for difference of opinion and where an immediate appeal may materially advance the ultimate termination of the litigation.” In re Estate of Luccio, 2012 Ill.App. 121153 ¶ 17 (citing Rule 308). Rule 308 review is especially appropriate where, as here, the Court itself has acknowledged that its disposition of Intervenors’ motion to dismiss required its consideration of multiple issues of first impression. Luccio, ¶ 18 (noting that certified question involved issue of first impression). Thus, certifying these questions for review now may materially advance the ultimate termination of the litigation, either by clarifying how the Court’s view of Illinois law should be applied (on a motion for summary judgment or at trial) or, in the alternative, confirming that Illinois law is not as the Court understands it, in which case plaintiffs’ remaining counts would be subject to dismissal. Among the questions of first impression as to which there is “substantial ground for difference of opinion” such that “an immediate appeal . . . may materially advance the ultimate termination of the litigation” are whether, under the Illinois Supreme Court’s “limited lockstep” doctrine, the United States Supreme Court’s summary disposition in Baker v. Nelson, 409 U.S. 810 (1972), is dispositive of plaintiffs’ state due process and equal protection claims; whether, under the state due process guarantee (art. I, § 2), same-sex couples have a fundamental right to marry; and whether, for purposes of the state equal protection guarantee (art. I, § 2), homosexuals 1

should be treated as members of a suspect or quasi-suspect class. Among the subsidiary questions of law as to which there is “substantial ground for difference of opinion” such that “an immediate appeal . . . may materially advance the ultimate termination of the litigation” include whether § 212(a)(5) of the Illinois Marriage and Dissolution of Marriage Act discriminates on its face against homosexuals; whether the disproportionate impact § 212(a)(5) has on homosexuals who wish to marry resulted from an intent or purpose by the General Assembly to discriminate against homosexuals; and what criteria apply in determining whether a class should be treated as “suspect” or “quasi-suspect,” how those criteria are defined and what relative weight should be given to them. Postponing resolution of these issues serves no purpose. As now framed, this case presents questions of state constitutional law that inevitably will have to be decided by the appellate court, if not the supreme court. Resolution of the questions of law proposed by the Intervenors now would provide critical guidance and clarity to this Court and the parties regarding the legal principles that will drive the outcome of this case, potentially dispose of or streamline the case and conserve scarce judicial resources. I. SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION EXISTS WITH RESPECT TO EACH OF THE QUESTIONS OF LAW WHICH INTERVENORS PROPOSE FOR CERTIFICATION BY THIS COURT. With respect to plaintiffs’ due process and equal protection claims, there are several questions of law as to which “ there is substantial ground for difference of opinion.” Ill. S. Ct. Rule 308.

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A.

A Substantial Ground For Difference Of Opinion Exists As To Whether The Supreme Court’s Summary Disposition In Baker v. Nelson, 409 U.S. 810 (1972), Is A Binding Precedent Foreclosing Plaintiffs’ State Due Process And Equal Protection Claims.

In considering plaintiffs’ due process and equal protection claims, this Court applied the “limited lockstep” doctrine set forth in People v. Caballes, 221 Ill.2d 283, 310 (2006), evaluating those claims in light of precedents interpreting the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Decision at 6, 14-15. By allowing those claims to stand, however, the Court necessarily and implicitly held that the Supreme Court’s summary disposition in Baker v. Nelson, 409 U.S. 810 (1972), is not controlling with respect to plaintiffs’ state constitutional claims. Intervenors submit that the precedential force of Baker v. Nelson is an appropriate subject of a certified question. In Baker, the Supreme Court considered an appeal from a decision of the Minnesota Supreme Court rejecting a federal constitutional challenge to state laws which prohibited samesex marriage. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The challenge was based upon, among other theories, due process and equal protection. The Court dismissed plaintiffs’ appeal “for want of a substantial federal question.” 409 U.S. 810. Under well-established precedent, that dismissal is a ruling on the merits of the issues presented by the appeal and binds lower federal courts and state courts applying federal due process and equal protection analysis. Hicks v. Miranda, 422 U.S. 332, 344-45 (1975). Baker v. Nelson has never been overruled or modified by the Supreme Court. The Court has never held that States must recognize same-sex marriages.1

See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (striking down state sodomy law) (“[t]he present case . . . . does not involve whether the government must give formal recognition to any relationship that homosexuals seek to enter”); United States v. Windsor, ___U.S.___, June 26, 2013, slip op. at 26 (“This opinion and its holding [striking down § 3 of the federal Defense of Marriage Act] are confined to those lawful [same-sex] marriages”). Same-sex marriages are not lawful in Illinois.

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Several state and federal courts have held that Baker is controlling with respect to federal due process and equal protection challenges to state laws that reserve marriage to opposite-sex couples, while at least one state reviewing court has held otherwise.2 In light of this conflicting authority, whether the Supreme Court’s summary disposition in Baker v. Nelson is binding precedent under the “limited lockstep” doctrine with respect to plaintiffs’ due process and equal protection claims “involves a question of law as to which there is substantial ground for difference of opinion.” B. With Respect To Plaintiffs’ Due Process Claims, A Substantial Ground For Difference Of Opinion Exists As To Whether, In Light Of Our History, Legal Traditions And Practices, Same-Sex Couples Have A Fundamental Right To Marry.

Assuming that the answer to Question A is in the negative, then it becomes necessary to answer a question of first impression, specifically, “whether the concept of choice as an aspect of the fundamental right to marry, as indicated in Boynton [v. Kusper, 112 Ill.2d 356, 368 (1986)], might apply to same-sex couples seeking to marry.” Decision at 17. This is a different way of asking whether same-sex couples have a fundamental right to marry, which is a question of law.3

See Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1084-88 (D. Haw. 2012); Sevcik v. Sandoval, 2012 WL 5989662 (D. Nev. Nov. 26, 2012), Order at 8-11; Wilson v. Ake, 354 F. Supp.2d 1298, 1304-05 (M.D. Fla. 2005). See also Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980) (finding Baker to be “controlling” in holding that “state law which rejects a purported marriage between persons of the same sex does not violate the due process or equal protection clause of the federal constitution”), aff’d 673 F.2d 1036 (9th Cir. 1981); Morrison v. Sadler, 821 N.E.2d 15, 19-20 (Ind. Ct. App. 2005) (referring to Baker as “binding United States Supreme Court precedent indicating that state bans on same-sex marriage do not violate the United States Constitution”); but see Hernandez v. Robles, 855 N.E.2d 1, 9 (N.Y. 2006) (Baker did not bar court from considering state equal protection claims). The Court stated in its ruling (Decision at 17), that plaintiffs “have presented sufficient facts to warrant further consideration of the question of whether the fundamental right to marry in Illinois includes the right to choose to marry a partner of the same sex,” but does not identify what those “facts” are. Whether same-sex couples have a fundamental right to marry does not turn on any factual presentation, but is a question of law, as every other court to have addressed the issue has concluded.
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Although some courts have held otherwise, the overwhelming majority of state and federal courts have rejected such claims, whether based on a state constitution or the federal constitution (or both).4 In light of this conflict of authority, whether the fundamental right to marry protected by the due process guarantee of the Illinois Constitution (art. I, § 2) extends to same-sex couples “involves a question of law as to which there is substantial ground for difference of opinion.” C. With Respect To Plaintiffs’ Equal Protection Claims, A Substantial Ground For Difference Of Opinion Exists As To Whether The Challenged Statutes Discriminate On Their Face Against Homosexuals.

Assuming that the answer to Question A is in the negative, then a determination must be made as to whether § 212(a)(5) is facially neutral with respect to the sexual orientation of an applicant for a marriage license in Illinois. With respect to plaintiffs’ equal protection claims, the Court found that “[t]he marriage ban [referring to § 212(a)(5) of the Illinois Marriage and Dissolution of Marriage Act] is not facially neutral.” Decision at 6. Explaining, the Court found that [t]he marriage ban, though it does not expressly name homosexuals as its target, prohibits conduct – marriage of two people of the same sex – which is so closely correlated with being homosexual that, as in Lawrence [v. Texas, 539 U.S. 558, 575 (2003) (O’Connor, J., concurring)], the conclusion is inescapable that it is directed against homosexuals as a class. Accordingly, plaintiffs are not required to allege facts to support that the law has a discriminatory purpose or intent in order to proceed on their equal protection claims.

In addition to the eighteen cases cited in Intervenors’ Reply Memorandum (Int. Reply Mem. at 6-7 and nn. 2, 3), and the four appellate court decisions affirmed by the New York Court of Appeals in Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), see also Adams v. Howerton, 486 F. Supp. 1119, 112425 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1981); but see In re Marriage Cases, 183 P.3d 384, 419-34 (Cal. 2008) (contra under state constitution), Goodridge v. Dep’t of Public Health, 798 N.E.2d 941, 953-968 (Mass. 2003) (same), and Perry v. Schwarzenegger, 704 F. Supp.2d 921, 993 (N.D. Cal. 2010), aff’d on other grounds sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded with instructions to dismiss the appeal for lack of standing, ___U.S.___, No. 12-144 (June 26, 2013) (contra under the federal constitution). In Perry, the district court made the remarkable, indeed, stunning, statement that the traditional restriction of marriage to opposite-sex couples was “never part of the historical core of the institution of marriage.” 704 F. Supp.2d at 993 (emphasis added).

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Id. at 8. Intervenors contend that this Court’s reliance on Justice O’Connor’s concurring opinion in Lawrence is misplaced. The majority opinion in Lawrence struck down the Texas sodomy statute on due process, not equal protection, grounds. Justice O’Connor’s concurring opinion, which no other Justice joined, would have rooted the decision in equal protection jurisprudence. Lawrence, a due process decision, does not support plaintiffs’ equal protection claims. Indeed, in her concurring opinion, Justice O’Connor stated that “preserving the traditional institution of marriage” is a “legitimate state interest” and that “other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.” 539 U.S. at 585 (O’Connor, J., concurring). Although some courts have held that statutes reserving marriage to opposite-sex couples are not facially neutral,5 other courts have recognized, consistent with the plurality opinion of the Hawaii Supreme Court, that “[p]arties to ‘a union of a man and a woman’ may or may not be homosexuals.” Baehr v. Lewin, 852 P.2d at 51 n. 11,6 as have several individual judges.7 That the Illinois marriage laws do not discriminate, on their face, on the basis of a marriage license applicant’s sexual orientation is seemingly confirmed by plaintiffs’ judicial admission that several plaintiffs had previously entered into opposite-sex marriages. See Lazaro Complaint, ¶¶

See, e.g., In re Marriage Cases, 183 P.3d at 440-41, Kerrigan v. Comm’r of Public Health, 957 A.2d 407, 431 n. 24 (Conn. 2008), Varnum v. Brien, 763 N.W.2d 862, 884-85 (Iowa 2009), Conaway v. Deane, 932 A.2d 571, 605-06 (Md. 2007); Hernandez v. Robles, 855 N.E.2d at11 (plurality), Sevcik v. Sandoval, Order at 13-15.
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See cases cited in Intervenors’ Memorandum, Int. Mem. at 16.

In addition to the opinions cited in Intervenors’ Memorandum, Int. Mem. at 20, see Kerrigan v. Comm’r of Public Health, 957 A.2d at 519 (Zarella, J., dissenting) (“limiting the institution of marriage to one man and one woman does not create a classification based on sexual orientation”); Hernandez v. Robles, 855 N.E.2d at 20 (Graffeo, J., concurring) (same).

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35 (Lynn Sprout), 70 (Suzanne Hutton); Darby Complaint, ¶¶ 6 (Bert Morton), 8 (Daphne ScottHenderson), 12 (Patricia Garcia). Indeed, this Court’s observation (Decision at 11) that “a prior heterosexual relationship does not mean that the particular plaintiff is not homosexual” simply confirms Intervenors’ point, to wit, that even though Ms. Sprout, Ms. Hutton, Mr. Morton, Ms. Scott-Henderson and Ms. Garcia may be homosexuals (according to their allegations), their homosexuality did not bar them from legally marrying someone of the opposite sex. Thus, the marriage statutes cannot be said to discriminate on their face against homosexuals. In light of the foregoing conflict of authority, whether § 212(a)(5) of the Illinois Marriage and Dissolution of Marriage Act discriminates, on its face, on the basis of sexual orientation “involves a question of law as to which there is substantial ground for difference of opinion.” D. With Respect To Plaintiffs’ Equal Protection Claims, A Substantial Question Exists As To Whether, In Enacting § 212(a)(5), The General Assembly Had A Purpose Or Intent To Discriminate Against Homosexuals.

Assuming that the answers to Questions A and C are in the negative, then, as this Court also necessarily implied in its ruling, (Decision at 8), it becomes necessary to determine whether “the law has a discriminatory purpose or intent . . . .” The determination of that issue – the General Assembly’s purpose or intent – presents a question of law, the interpretation of the legislative history of § 212(a)(5), which is appropriate for certification. As a matter of law, there is no legally cognizable evidence that, in enacting § 212(a)(5), the General Assembly, as opposed to any individual member thereof, had a purpose or intent to discriminate against homosexuals.8 See Craddock v. Board of Education of Annawan Community School District No. 226 of Henry County, 76 Ill.App.3d 43, 52 (3d Dist. 1979) (“statements of a few legislators in a floor debate would not in itself affirmatively establish the
8

See Int. Mem. 16-19, Int. Reply Mem. 20-24.

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intent of the legislature”), aff’d, 81 Ill.2d 28 (1980). The General Assembly’s mere knowledge that § 212(a)(5) would have a disparate impact upon homosexuals who might want to marry each other is insufficient to establish a hostile purpose or intent, as several courts have concluded in evaluating the legislative history of their own marriage laws. See Andersen v. King County, 138 P.3d at 981 & n. 15 (plurality); Hernandez v. Robles, 855 N.E.2d at 8 (plurality); Dean v. District of Columbia, 653 A.2d at 362-63 (Op. of Steadman, J., concurring).9 In light of the foregoing authority, whether, in enacting § 212(a)(5) of the Illinois Marriage and Dissolution of Marriage Act, the Illinois General Assembly, as a matter of law, can be said to have been motivated by an intent or purpose to discriminate against homosexuals “involves a question of law as to which there is substantial ground for difference of opinion.” E. With Respect To Plaintiffs’ Equal Protection Claims, A Substantial Question Exists As To Whether Homosexuality Should Be Treated As A Suspect Or Quasi-Suspect Basis For Classification.

Assuming that the answer to Question A is in the negative and further assuming that the answer to either Question C or Question D is in the affirmative, then it becomes necessary to determine whether, for purposes of state equal protection analysis, a person’s sexual orientation, or homosexuality, should be treated as a suspect or quasi-suspect basis for classification. In its ruling, this Court recognized that this, too, presents “an issue of first impression in Illinois.” Decision at 8. The resolution of that issue, in turn, depends on (a) what criteria apply in determining whether a classification should be treated as “suspect” or “quasi-suspect,” (b) how

Even in striking down, on state constitutional grounds, the citizen-initiated statutory measure reserving marriage to opposite-sex couples (Proposition 22), the California Supreme Court expressly disavowed the suggestion “that the current marriage provisions were enacted with an invidious intent or purpose.” In re Marriage Cases, 183 P.3d at 452 n. 73.

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those criteria are now defined and (c) what relative weight should be given to those criteria.10 The Supreme Court has identified four criteria (or characteristics) that suspect (or quasisuspect) classes commonly share: (1) a history of discrimination; (2) a trait that “bears no relation to ability to perform or contribute to society[;]” (3) an immutable trait; and (4) political powerlessness. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440-46 (1985); Lyng v. Castillo, 477 U.S. 635, 638 (1986). For the reasons that follow, the definition and application of those criteria present an appropriate question for certification. 1. What Does “Immutability” Mean?

With respect to immutability, does that term mean, as the Supreme Court defines the

The overwhelming majority of state and federal courts have held that classifications based upon one’s sexual orientation are subject to rational basis review, not the heightened scrutiny that applies to suspect (race, national origin, alienage) or quasi-suspect (gender, illegitimacy) classifications. With the sole exception of the Second Circuit’s decision in Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012), which was affirmed on alternative grounds by the Supreme Court, every other circuit court of appeals to have addressed the issue has held that homosexuality, is not a suspect or quasi-suspect basis for legislative classification. See Int. Mem. 19-20 n. 14 (citing two dozen cases from eleven of the thirteen federal courts of appeal holding that rational basis review applies). With the exception of the district court’s decision in Perry v. Schwarzenegger, 704 F. Supp.2d 921 (N.D. Cal. 2010) (applying heightened scrutiny to plaintiffs’ due process claim), no federal court reviewing the constitutionality of a state marriage statute reserving marriage to opposite-sex couples has applied heightened scrutiny. See Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) (upholding Nebraska’s constitutional amendment on marriage); Wilson v. Ake, 354 F. Supp.2d 1298 (M.D. Fla. 2005) (upholding Florida’s marriage statute); Jackson v. Abercrombie, 884 F. Supp.2d 1065, 1098 (D. Haw. 2012) (upholding Hawaii’s marriage statute); and Sevcik v. Sandoval, 2012 WL 5989662 (D. Nev. Nov. 26, 2012) (upholding Nevada’s constitutional amendment on marriage). With the exception of the decisions of the California, Connecticut and Iowa Supreme Courts striking down their marriage statutes, see In re Marriage Cases, 183 P.3d 384 (Cal. 2008), Kerrigan v. Comm’r of Public Health, 957 A.2d 407 (Conn. 2008), Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), state reviewing courts have uniformly held that the rational basis standard, not heightened scrutiny, applies to the review of statutes reserving marriage to opposite-sex couples and have upheld those statutes (the cases are cited in Intervenors’ Memorandum and Reply Memorandum). Although the Massachusetts Supreme Judicial Court purported to apply the rational basis standard of review in striking down the Commonwealth’s reservation of marriage to opposite-sex couples, see Goodridge v. Dep’t of Health, 798 N.E.2d 941, 961 (Mass. 2003), the majority in effect applied scrutiny review, by shifting the burden of proof as to the reasonableness of the statutes from the plaintiffs to the Commonwealth, as Justice Cordy noted in his dissent. Id. at 997-1004 & n.21 (Cordy, J., dissenting).

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term, a characteristic “determined solely by the accident of birth,” like sex, race and national origin, Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality), or, as plaintiffs, propose (Lazaro Complaint, ¶ 121), a characteristic that is “central to their core identity,” and if the latter, then what does that formulation mean, or, as this Court rephrased plaintiffs’ formulation (Decision at 11), a characteristic that is “an integral part of [a person’s] identity”? The answer to that question of law is significant because plaintiffs have not alleged that their sexual orientation is “immutable” as that term is defined by the Supreme Court. At a more basic level, is it necessary for recognition of suspect or quasi-suspect class status even to allege that a group’s defining characteristic be “immutable” in the sense the Supreme Court defines immutability, or is it sufficient to define the class on the basis of the conduct of members of the class?11 Compare Conaway v. Deane, 932 A.3d at 614-16 (requiring proof of immutability), In re Marriage of J.B. and H.B., 326 S.W.3d at 673 (same), Andersen v. King County, 138 P.3d at 974 (same), Jackson v. Abercrombie, 884 F. Supp.2d at 1099-1101 (same), Sevcik v. Sandoval, Order at 17-19 (same), with In re Marriage Cases, 183 P.3d at 442 (“immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes” under the state constitution), Kerrigan v. Comm’r of Public Health, 957 A.2d at 437 (for purposes of state equal protection analysis, it is not necessary
The Supreme Court has never recognized a suspect or quasi-suspect class on the basis of the class’s behavior, much less on the basis of a subjective standard like the one proposed by plaintiffs (whether the characteristic is “central to their core identity”). See Woodward v. United States, 871 F.3d 1068, 1076 (Fed. Cir. 1989) (“[t]he conduct or behavior of the members of a recognized suspect or quasisuspect class has no relevance to the identification of those groups”); High Tech Gays v. Defense Industrial Service Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (same). As the Sixth Circuit has said, even assuming that one’s sexual orientation is a “characteristic beyond the control of the individual,” “the reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such an innate desires, drives and thoughts.” Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F.3d 261, 267 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001 (1996), on remand, 128 F.3d 289 (6th Cir. 1997).
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to decide whether sexual orientation is immutable “in the same way and to the same extent that race, national origin and gender are immutable‘), Varnum v. Brien, 763 N.W.2d at 892-93 (same), and Windsor v. United States, 699 F.3d at 184 (same in concluding that “sexual orientation is a sufficiently distinguishing characteristic to identify the discrete minority class of homosexuals”). 2. What Does “Political Powerlessness” Mean?

With respect to the criterion of political powerlessness, does “political powerlessness” mean, as the Supreme Court defines the term, that members of the group “have no ability to attract the attention of the lawmakers,” Cleburne, 473 U.S. at 445 (emphasis added), or, as this Court held (Decision at 12), is the test now whether the group is a “minority” and has been unable to achieve a particular legislative objective? Compare Conaway v. Deane, 932 A.2d at 609-14 (requiring proof of political powerlessness), In re Marriage of J.B. and H.B., 326 S.W.3d at 673 (same); Andersen v. King County, 138 P.3d at 974-75 (same), Jackson v. Abercrombie, 884 F. Supp.2d at 1101-02 (same); Sevcik v. Sandoval, Order at 19-27 (same) , with In re Marriage Cases, 183 P.3d at 443 (not necessary to establish political powerlessness), Kerrigan v. Comm’r of Public Health, 957 A.2d at 439-61 (diluting requirement, Varnum v. Brien, 763 N.W.2d at 893-95 (same), and Windsor v. United States, 699 F.3d at 184-85 (same). The answer to that question of law is significant because plaintiffs have not alleged that they are “politically powerless” as that term is defined by the Supreme Court.12 And, if the test is the one formulated

Plaintiffs’ allegation that “lesbians and gay men” have been “relegated to a position of political powerlessness,” Lazaro Complaint, ¶ 120, is a conclusion of fact which is not admitted for purposes of a motion to dismiss. Plaintiffs cite no specific facts in support of this allegation, which is not surprising given the remarkable legislative achievements the gay and lesbian community has achieved in Illinois, including the enactment of a broad range of anti-discrimination laws, as well as the Illinois Religious Freedom Protection and Civil Union Act. Int. Reply Mem. at 31-33. Indeed, it is not clear what part of their legislative agenda, apart from marriage, the gay and lesbian community has not achieved in Illinois.

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by this Court, any minority could be regarded as “politically powerless” with respect to any given legislation that it was unable to persuade a legislature to enact. As the federal district court held in rejecting the federal constitutional challenge to Nevada’s marriage amendment observed, If a plaintiff could necessarily win on the political powerlessness factor of the level-of-scrutiny analysis by the very fact that he was unable to challenge a particular law democratically, the factor would be meaningless. Political powerlessness for the purpose of an equal protection analysis does not mean that the members of a group have failed to achieve all of their goals or have failed to achieve the particular goal they aim to achieve via the lawsuit in which the political powerlessness issue is litigated. Sevcik v. Sandoval, Order at 20. 3. What Is The Relevance Of Homosexuality To The State’s Interests?

Does a person’s sexual orientation have any relation to the interests for which marriage is reserved to opposite-sex couples – encouraging responsible procreation and facilitating an environment in which the children so procreated will be raised in a family with both a mother and a father to whom they are biologically related? Intervenors have argued, on the basis of overwhelming legal authority, that the answer to this question is yes because, by definition, the sexual activity of same-sex couples (unlike the sexual activity of opposite-sex couples) presents no risk of irresponsible procreation or the need for the creation and support of a social institution in which the children so procreated may be raised by their mother and father. Instead of definitively answering this question, however, this Court suggested (Decision at 11) that the legitimacy of those interests may have been undermined by the enactment of the Illinois Religious Protection and Civil Union Act. The courts are divided on whether a legislature’s recognition of civil union (or equivalent) status for same-sex couples undermines the rationale for the State’s reservation of marriage to opposite-sex couples. Compare Jackson v. Abercrombie, 884 F. Supp.2d at 1107-11 12

(adoption of civil union law did not affect constitutionality of statute reserving marriage to opposite-sex couples), and Sevcik v. Sandoval, Order at 33-35 (same with respect to domestic partnership act), with In re Marriage Cases, 183 P.3d at 418 (“nature and breadth of the rights afforded same-sex couples under the Domestic Partner Act is significant, because under California law the scope of that enactment is directly relevant to the question of the constitutional validity of the provisions in California’s marriage statutes limiting marriage to opposite-sex couples”), and Kerrigan v. Comm’r of Public Health, 957 A.2d at 412 (“the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm”). In light of the foregoing conflict of authority with respect to the definition and application of the criteria for determining suspect or quasi-suspect class status, whether a person’s sexual orientation or, more precisely, homosexuality, should be regarded as a suspect (or quasi-suspect) characteristic for purposes of Illinois equal protection analysis “involves a question of law as to which there is substantial ground for difference of opinion.” F. With Respect To Both Plaintiffs’ Due Process and Equal Protection Question, Is The Reservation Of Marriage To Opposite-Sex Couples Reasonably Related To One Or More Legitimate State Interests?

Assuming that the Supreme Court’s summary disposition in Baker v. Nelson is not binding precedent requiring dismissal of plaintiffs’ due process and equal protection claims, and further assuming that neither intermediate nor strict scrutiny applies to the challenged statutes, then it must be determined whether the reservation of marriage to opposite-sex couples is reasonably related to one or more legitimate state interests. An affirmative answer to this question would require dismissal of plaintiffs’ claims because, on rational basis review, the State’s “legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc., 13

508 U.S. 307, 315 (1993). With the (arguable) exceptions of the Massachusetts Supreme Judicial Court’s opinion in Goodridge and the district court’s decision in Perry v. Schwarzenegger,13 no state reviewing court and no federal court has ever invalidated a marriage statute under the rational basis standard of review. Whether the reservation of marriage to opposite-sex couples is reasonably related to one or more legitimate state interests “involves a question of law as to which there is substantial ground for difference of opinion.” II. AN IMMEDIATE APPEAL OF THE QUESTIONS OF LAW PROPOSED FOR CERTIFICATION BY THE INTERVENORS MAY MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION ON THE MERITS. For the following reasons, an immediate appeal of the Questions of Law proposed for certification by the Intervenors “may materially advance the ultimate termination of the litigation on the merits.” First, if the Supreme Court’s summary disposition in Baker v. Nelson is binding precedent controlling the disposition of plaintiffs’ due process and equal protection claims, then those claims would have to be dismissed. Second, even if Baker v. Nelson is not controlling, if the fundamental right to marry

In “redefining” marriage to include same-sex couples, the majority in Goodridge departed from standard rational basis review, as Justice Cordy noted in his dissent (see last sentence of n. 10, supra). And in Perry, the district court not only held that the classification in the law (Proposition 8) failed to satisfy the rational basis standard of review for purposes of equal protection analysis, 704 F. Supp.2d at 995-1003, but also held that the fundamental right to marry extends to same-sex couples, id. at 991-95, thereby invoking strict scrutiny review. Both of the district court’s holdings in Perry (due process and equal protection) are outliers in the law. See cases cited in Intervenors’ Memorandum (Int. Mem. at 19-20 n. 14) and Intervenors’ Reply Memorandum (Int. Reply Mem. at 6-7 and nn. 2, 3).

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protected by the due process guarantee of the Illinois Constitution (art. I, § 2) does not extend to same-sex couples, plaintiffs’ due process claims would have to be dismissed. Third, even if Baker v. Nelson is not controlling and further assuming that the challenged statutes do not discriminate on their face against homosexuals and were not motivated by a purpose or intent to harm homosexuals, then plaintiffs’ equal protection claims based on art. I, § 2, of the Illinois Constitution would have to be dismissed. Fourth, assuming that Baker v. Nelson is not controlling and further assuming that either the challenged statutes discriminate on their face against homosexuals or that they were enacted with a purpose or intent to discriminate against homosexuals, then if homosexuality is not a suspect or quasi-suspect basis for classification, plaintiffs’ equal protection claims would have to be reviewed under the rational basis standard. Fifth, assuming that Baker v. Nelson is not controlling and further assuming that the rational basis standard of review applies to plaintiffs’ due process and equal protection claims, then if the challenged statutes are reasonably related to one or more legitimate state interests, plaintiffs’ due process and equal protection challenges would have to be dismissed. For the foregoing reasons, in the interests of conserving scarce judicial resources and providing necessary clarity and structure for the legal issues presented by plaintiffs’ due process and equal protection claims, Intervenors respectfully request that this Honorable Court certify the proposed questions of law as set forth in Intervenors’ Motion to Certify Questions of Law. If left unresolved, these issues will continue to dog these proceedings as the parties attempt to frame the issues to be litigated. Worse, and in particular regarding the issues of first impression relied upon by the Court in preserving plaintiffs’ remaining counts, if these issues were wrongly decided, the time, expense and resources about to be consumed at trial could all be for naught. 15

Respectfully submitted, CHRISTIE WEBB, in her official capacity as Tazewell County Clerk, KERRY HIRTZEL, in his official capacity as Effingham County Clerk, DANIEL S. KUHN, in his official capacity as Putnam County Clerk, PATRICIA LYCAN, in her official capacity as Crawford County Clerk, and BRENDA BRITTON, in her official capacity as Clay County Clerk By: _______________________________ One of Their Attorneys

Of Counsel: Thomas Brejcha Paul Benjamin Linton Peter Breen Special Assistant State’s Attorneys c/o Thomas More Society 19 S. La Salle Street, Suite 603 Chicago, IL 60603 (312) 782-1680 (tel.) (312) 782-1887 (fax)

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CERTIFICATE OF SERVICE The undersigned, an attorney, certifies hereby that a true and correct copy of the foregoing document was served on counsel for the parties of record on the attached service list by depositing the same in the United States mail, first class postage prepaid on October 8, 2013, and also via e-mail to the electronic addresses indicated on October 8, 2013.

_______________________________

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SERVICE LIST Anita Alvarez COOK COUNTY STATE’S ATTORNEY Kent Ray kent.ray@cookcountyil.gov Patrick T. Driscoll, Jr. Paul A. Castiglione Sisavahn Baker Assistant State’s Attorneys 500 Richard J. Daley Center 50 West Washington Street Chicago, Illinois 60602 John A. Knight jknight@aclu-il.org Karen Sheley Harvey Grossman ROGER BALDWIN FOUNDATION OF ACLU, INC. 180 N. Michigan Avenue Suite 2300 Chicago, Illinois 60601 Emily Nicklin enicklin@kirkland.com KIRKLAND & ELLIS, LLP 300 N. La Salle Street Chicago, Illinois 60654 Malina Rao mrao@atg.state.il.us Christopher Kim OFFICE OF THE ATTORNEY GENERAL State of Illinois 100 West Randolph Chicago, Illinois 60601 Gretchen E. Helfrich ghelfrich@mayerbrown.com MAYER BROWN LLP 71 S. Wacker Drive Chicago, Illinois 60607

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Camilla B. Taylor ctaylor@lambdalegal.org Kenneth D. Upton, Jr. LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. Midwest Regional Office 105 W. Adams 26th Floor Chicago, Illinois 60603-6208

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