Illinois Religious Freedom

Illinois House Bill 0110 1
Illinois House Bill 0110
Religious Freedom and Marriage Fairness Act
Amethyst Keeling

Abstract
This paper demonstrates Illinois House Bill 0110, the Religious Freedom and Marriage Fairness Act
should be enacted. This law provides that all laws of the State of Illinois applicable to marriage shall
apply equally to marriages of same-sex and different-sex couples and their children while protecting any
religious organizations’ right to not recognize or solemnize such marriages without recourse. This is act
is constitutionally sound on its merits and there is no legitimate fact based reason that this law should not
be enacted. There is argument that this law will infringe upon religious freedom and interfere with the
traditional idea of marriage. This paper shows these arguments are unfounded and cannot stand the
constitutional test of strict scrutiny. My goal is to show that Illinois House Bill 0110, the Religious
Freedom and Marriage Fairness Act is constitutionally sound and should be passed into law in the State of
Illinois to the benefit of all citizens and religious organizations alike.

Illinois House Bill 0110
Religious Freedom and Marriage Fairness Act
Introduction
We live in an every changing world and society. As society evolves, so must the law.
Historically, the United States is slow to change but change does happen. Slavery was once an
institution in the United States. In 1865 the Thirteenth Amendment was passed to abolish
slavery. (National Archives, 2012). This change did not come without its share of emotional
conflict on a national scale. Today, we look back and see slavery as an abomination. As societal
views changed, so did the law of the land.
The issue of same-sex marriage has become the next frontier of change for our society.
Illinois Republican Greg Harris has introduced House Bill 0110, the Religious Freedom and
Marriage Fairness Act. If passed, this Act will give recognition to civil marriage for same-sex
couples while protecting religious organizations from prosecution for refusing to recognize,
solemnize or otherwise promote same-sex marriage. .” H.B. 0110, 98th Gen. Assemb. Reg. Sess.
(Il. 2013). The purpose of this bill is to “provide same-sex and different-sex couples and their
children equal access to the status, benefits, protections, rights and responsibilities of civil
marriage.” H.B. 0110, 98th Gen. Assemb. Reg. Sess. (Il. 2013). This Bill further does not require
any religious denomination or their representatives to solemnize any marriage and protects them
from civil, administrative, or criminal penalty, claim or cause of action. H.B. 0110, 98th Gen.
Assemb. Reg. Sess. (Il. 2013). In striking this precarious balance, this bill can give equal access
to the benefits of recognized civil marriage to same-sex couples while protecting and supporting
the Constitutional guarantee of religious freedom to those organizations that so strongly oppose

the idea of same-sex marriage. In the spirit of the Fourteenth Amendment of the United States
Constitution, Illinois House Bill HB0110 should be passed to allow same-sex couples and their
children the same rights, privileges and responsibilities as different-sex couples under Illinois
law while granting religious organizations the freedoms constitutionally guaranteed to not
recognize or solemnize such unions without recourse.
History of Same-Sex Marriage
Archeological evidence shows that there have been same-sex marriages throughout the
centuries that were recognized and condoned by various religions (Random History.com, 2011).
Egyptian, Greek and Roman cultures have all shown evidence of recognition of same-sex unions.
(Random History.com, 2011). There is even evidence of gay clerics performing homosexual
marriages back to the fourth century (Random History.com, 2011). There appeared to be
tolerance and even recognition of homosexual marriages as history progressed. “As the civil
rights movement rocked America in the middle of the twentieth century, the gay and lesbian
rights movement also got its start.” (Random History.com, 2011)
It wasn’t until the 1993 that same-sex marriage was brought to the forefront here in the
United States. In Baehr v. Lewin, the Hawaiian Supreme Court ruled that denying a marriage
license to a same-sex couple was discrimination. 74 Haw. 520, 852 P.2d 44 (Hawaii, 1993). In
the last 20 years, same-sex marriage has become the topic of much debate and controversy.
“Eight states (CT, IA, ME, MD, MA, NH, NY, WA, and VT) plus
Washington, D.C. have the freedom to marry for same-sex couples. In 2012, the
legislature in NJ passed a freedom to marry bill, and work is now underway to
override the governor's veto.

NM and RI explicitly respect out-of-state marriages of same-sex couples,
while eight states now offer broad protections short of marriage. DE, HI, IL, NJ,
and RI allow civil union, while CA, OR, and NV offer broad domestic partnership.
Two other states (CO, WI) have more limited domestic partnership.” (Freedom to
Marry, 2013)
This issue has now risen to the United States Supreme Court in Hollingsworth v. Perry,
133 S.Ct. 786, 184 L.Ed.2d 526, 81 USLW 3075, 81 USLW 3322, 81 USLW 3324, 12 Cal.
Daily Op. Serv. 13,398 (2013) (No. 12-144), as to the constitutionality of the denial same-sex
marriage and the ability of states to deny the recognition of such unions. The decision as to the
definition of marriage by this Court will have resounding effects across the country and force
states to address the issue of same-sex marriage across the country.
Argument
“There is no legitimate, fact-based justification for different legal treatment of
committed relationships between same-sex couples.” Brief of Amici Curiae Kenneth B.
Mehlman et al. Support Respondents, Hollingsworth v. Perry, 133 S.Ct. 786, 184 L.Ed.2d 526,
81 USLW 3075, 81 USLW 3322, 81 USLW 3324, 12 Cal. Daily Op. Serv. 13,398 (2013) (No.
12-144) 2013 WL 769312. When we classify people, we make distinctions based upon
characteristics. Society classifies people in various ways based upon race, age, color, gender and
sexual orientation. As we have shown through our legislative and legal history, such
classifications have been struck down when it comes to the legal treatment of such
classifications. Cases such as Lawrence v. Texas, 539 U.S. 558 (2003), Loving v. Virginia, 388
U.S. 1 (1967) and Brown v. Board of Education, 347 U.S. 483 (1954), have all held that the
differential treatment of citizens based upon classifications such as color and sexual orientation

are unconstitutional and cannot stand the constitutional test of strict scrutiny. “Laws that make
distinctions between classes of people must have ‘reasonable support in fact,’ New York State
Club Ass’n v. City of N.Y., 487 U.S. 1, 17 (1998), and must ‘operate so as rationally to further; a
legitimate government goal,United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 537 (1973).”
Brief of Amici Curiae Kenneth B. Mehlman et al. Support Respondents, Hollingsworth v. Perry,
133 S.Ct. 786, 184 L.Ed.2d 526, 81 USLW 3075, 81 USLW 3322, 81 USLW 3324, 12 Cal.
Daily Op. Serv. 13,398 (2013) (No. 12-144) 2013 WL 769312. “Instead, the facts and evidence
show that permitting civil marriage for same-sex couples will enhance the institution, protect
children and benefit society generally.” Id. The Illinois State Constitution also states, “No
person shall be deprived of life, liberty or property without due process of law nor be denied the
equal protection of the laws.” Il. Const. art. I, §2. The State of Illinois is further supporting that
all classifications of people shall be treated equally.
“Marriage is a coming together for better or for worse, hopefully enduring, and intimate
to the degree of being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet
it is an association for as noble a purpose as any involved in our prior decisions.” Griswold v.
Connecticut, 381 U.S. 479 (1965) “Marriage promotes the values of stability, mutual support and
mutual obligation.” Brief of Amici Curiae Kenneth B. Mehlman et al. Support Respondents,
Hollingsworth v. Perry, 133 S.Ct. 786, 184 L.Ed.2d 526, 81 USLW 3075, 81 USLW 3322, 81
USLW 3324, 12 Cal. Daily Op. Serv. 13,398 (2013) (No. 12-144) 2013 WL 769312. No
scientific research has proven that allowing same-sex couples to the same rights and
responsibilities of marriage has proven any detriment to traditional different-sex marriage
couples. Actually, marriage makes it much easier for family members to make plans and

decisions without the need for additional assistance or expense. “Stable relationship may produce
more personal income and less demands on welfare and unemployment programs; it may create
the best conditions for the rearing of children; and it may encourage individuals to invest and
save for the future” Id.( quoting Choper & Yoo, 2008). Therefore, by denying same-sex couples
the legal recognition of civil marriage/civil union there is a creation of a greater burden on
families, governmental system and courts against the greater societal goals.
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and
survival.” Loving v. Virginia, 388 U.S. 1 (1967) The choice to marry and whom we marry are all
very personal issues, not in the realm of governmental intrusion. Lawrence v. Texas, 539 U.S.
558 (2003), held that “[t]he liberty upheld by the Constitution allows homosexuals the right to
make this choice” to be homosexual. The court further stated, “When sexuality finds overt
expression in intimate conduct with another person, the conduct can be but one element in a
personal bond that is more enduring.” Id. This point adheres to the foundation of the goals of
stability, mutual support and mutual obligation.
As society’s views change, so should the law. “Overall, 53% of Americans believe same-
sex marriages should be recognized by law as valid, with the same rights as traditional
marriages.” (Gallup, Inc., 2012) These statistics show that society has an acceptance of same-
sex marriage that should be reflected in the law. In recognizing these marriages in the eyes of
the law, these couples gain the same benefits of different-sex couples through tax benefits,
property rights, health insurance, retirement assets and child rearing. (Backgrounder, 2012).
With these guarantees in place, families of same-sex marriages can make plans and function
independently without the extra burden of attorney fees and special planning not required of
different-sex married couples. “Some—not all—of these rights and responsibilities can be

approximated outside marriage with expensive legal assistance, but only marriage provides
family members with the security that these benefits will be automatically available when they
are most needed.” Brief of Amici Curiae Kenneth B. Mehlman et al. Support Respondents,
Hollingsworth v. Perry, 133 S.Ct. 786, 184 L.Ed.2d 526, 81 USLW 3075, 81 USLW 3322, 81
USLW 3324, 12 Cal. Daily Op. Serv. 13,398 (2013) (No. 12-144) 2013 WL 769312.
Counterargument
One of the greatest arguments against the validation of same-sex civil marriages is the
effect it will have on children raised in such environments. Scientific evidence supports that
“[c]hildren growing up in same-sex parental households do not necessarily have differences in
self-esteem, gender identity, or emotional problems from children growing up in heterosexual
parent homes.” (Unknown, 2005). “Between 1 million and 6 million children in the U.S. are
being reared by committed lesbian or gay couples.” (Unknown, 2005) “The combined data
presented … showed that children whose parents are lesbian have no more problems than the rest
of the children and actually may be more tolerant of differences.” (Unknown, 2005) The results
of these studies actually then show that there is a positive influence from having same-sex
parents that is at its very least equal to the benefits of having different-sex parents. This
subsequently negates any governmental interest in prohibiting same-sex civil unions based upon
the negative effects it may have on the children exposed to or raised in such environment.
Same-sex marriage can be validated while still respecting the religious beliefs and
institutions in this country. Illinois House Bill 0110 proposes that no religious denomination or
Indian Nation or Tribe or Native Group, or any minister, clergy, or officiant acting as a
representative of a such groups be required to solemnize any marriage but is still free to choose
which marriage it will solemnize. Further, no refusal by such organization or representative

thereof “shall create or be the basis for any civil, administrative or criminal penalty, claim or
cause of action.” HB 0110. 98th Gen. Ass. (IL., 2013)
The freedom of religion is one of the founding tenants of this country that its citizens
are free to believe what they choose and practice the religion of their choice without
governmental interference. “Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof…” U.S. Const. amend. I. Firm religious beliefs are as
much a part of our culture and society as our Constitution. The “Court has long recognized that
private beliefs, no matter how strongly held, do not, without more, establish a constitutional basis
for law”. Brief of Amici Curiae Kenneth B. Mehlman et al. Support Respondents, Hollingsworth
v. Perry, 133 S.Ct. 786, 184 L.Ed.2d 526, 81 USLW 3075, 81 USLW 3322, 81 USLW 3324, 12
Cal. Daily Op. Serv. 13,398 (2013) (No. 12-144) 2013 WL 769312. A different-sex couple can
go to the courthouse, obtain a marriage license, and have their marriage legitimized by a county
or state official and that marriage is valid and recognized by the State. U. S. Constitution,
Article IV, Section 1 states, “Full Faith and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State.” Therefore, that couple can then move
to another state and have their marriage recognized as legally binding. With this ‘marriage’ the
couple gains all the benefits of marriage including tax credits, inheritance, retirement benefits
and property rights of survivorship.
It is common knowledge that the Church does not have to recognize a marriage not
performed in that church. Under this proposed ‘civil marriage’ legislation, the church does not
have to recognize the marriage, yet the couple still gains all the legal and social benefits of
marriage. In extending these benefits to same-sex couples with the passage of this legislation,
the church still does not have to recognize or solemnize this union. The separation of Church and

State is protected while guaranteeing the legal rights of citizens. Illinois Constitution, artic. I §3
further guarantees religious freedom, “[t]he free exercise and enjoyment of religious profession
and worship, without discrimination, shall forever be guaranteed, and no person shall be denied
any civil or political right, privilege or capacity, on account of his religious opinions; but the
liberty of conscience hereby secured shall not be construed to dispense with oaths or
affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or
safety of the State.” Il. Const. art. I, §3.
By addressing the issue of religious freedom in drafting this law to prevent such
religious organizations from being forced to participate in the solemnization of same-sex
marriage, this legislation protects religious freedom while meeting the Constitutional
demands of Equal Protection and surviving strict scrutiny review. At the same time, the
State of Illinois is further adhering to its own Constitution in allowing people to believe
as they wish and not interfere with the practice of religious institutions in its state, except
in limited circumstances that may present a legitimate state interest.
The argument ultimately comes down to the actual definition of marriage.
Marriage can be defined as “the state of being united to a person of a consensual and
contractual relationship recognized by law.” (Merriam-Webster, 2013). The definition is
further broken down to mean between a man and a woman or between to people of the
same sex. (Merriam-Webster, 2013). Therefore, the dictionary shows two recognized
definitions in our society today. In passing this Illinois House Bill 0110, the law would
reflect society’s views of the definitions of marriage. This legal definition has no bearing
on the religious definition of marriage. Rather, this legislation protects the Church’s right
to proceed in its beliefs and operation without interference from the State of Illinois,

except in limited circumstances as proscribed in the Bill. The Bill proposes the only time
the religious organization could be held liable is if they make their services or facilities
available to the general public on a regular basis or utilize any public funding or benefits
for such use. HB 0110. 98th Gen. Ass. (IL., 2013) Therefore, the only time there would
be any governmental interference would be if there was a legitimate state interest at
stake.
“The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.” U. S. Const. amend. X.
This clause gives the State of Illinois the authority to make such law to extend the benefits of
marriage to same-sex couples. This legislation would also conform with the Full, Faith and
Credit Clause in recognizing same-sex civil unions/marriage from other states for those that
choose to come to Illinois.
Conclusion
“Choices about marriage, family life, and the upbringing of children are among
associational rights this Court has ranked as ‘of basic importance to our society,’ rights sheltered
by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard or
disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996). This is as important as the freedom of
religion we also so greatly value in our country. As a fundamental right, Illinois House Bill 0110
stands to promote and protect same-sex marriage and the families thus affected by setting forth
the definition of marriage to include same-sex and different sex-couples, granting both equal
rights in all aspects of the law and society and furthering the State’s interests in curtailing
discrimination based upon class. At the same time, this Bill also protects various religious
organizations and Native Tribes from recourse for their refusal to recognize or solemnize such

marriages by giving them legislated protection with only limited exceptions in circumstances
where there is a legitimate state interest. Rarely does legislation aim to please so many people at
one time.
By passing this bill, the State of Illinois joins a group of forwarding thinking states that
recognize the changes in society today and are striving to have their legislation adhere with
societal views. Not everyone will agree with this Act. Both the United States and State of
Illinois Constitutions safeguard that ability to disagree. Without a factual basis or legitimate
state interest at its heart, it is unconstitutional to deny same-sex couples the same rights,
responsibilities, benefits and obligations of civil marriage. Therefore, Illinois House Bill 0110 ,
also known as the Religious Freedom and Marriage Fairness Act, should be passed by the Illinois
legislature and signed into law by the Illinois governor for all the reasons set forth above.

References
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Brief of Amici Curiae Kenneth B. Mehlman et al. Support Respondents, Hollingsworth v.
Perry, 133 S.Ct. 786, 184 L.Ed.2d 526, 81 USLW 3075, 81 USLW 3322, 81 USLW
3324, 12 Cal. Daily Op. Serv. 13,398 (2013) (No. 12-144) 2013 WL 769312.
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U.S. Const. amend. I
U.S. Const. amend. X
U.S. Const. Art. IV, §1

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