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Judge: Lawsuit Seeking To End Same-Sex Marriage Ban May Proceed

Happy Couples
Danielle Cook and her partner Suzie Hutton, from Bloomington; and Patrick Bova and his partner James Darby, from Chicago, (left to right) celebrate after a judge ruled a lawsuit challenging the state's ban on same-sex marriage can move forward. (Credit: CBS)

Updated 09/27/13 - 3:55 p.m.

CHICAGO (CBS) — A Cook County judge has ruled a lawsuit challenging Illinois' ban on same-sex marriage can move forward.

CBS 2's Mai Martinez reports gay and lesbian couples fighting for the right to get marriage licenses hailed the ruling as another step toward marriage equality in their home state.

"I'm a little numb, because as far as the legalese is concerned, I'm not sure what happened," said James Darby, one of the plaintiffs seeking to end the state's ban on same-sex marriages.

Darby, 81, and Patrick Bova, 75, fell in love nearly 50 years ago, and have been together ever since. They took vows together in a civil union ceremony in 2011, but want to get married in Illinois.

Darby seemed a little confused Friday morning, moments after learning his and Bova's legal fight to end Illinois' same-sex marriage ban could continue. One thing he was sure of is why he was fighting.

"Patrick and I are together for 50 years. I am a veteran. I served my country. I should have the same rights as everbody else in this country, including the right to get married in my home state," he said.

Though they could go to one of several other states where same-sex marriages are legal, they said they want to get married in Illinois.

"We could go to Iowa. We could go to Minneapolis, and satisfy that mayor. We could go to New York, and satisfy that mayor. And we could also go to California, where we have a home," Bova said. "We have many, many opportunities to get married, but we want to get married in Illinois. This is our home state. We'll spend our money here"

Darby and Bova got a step closer to their dream Friday, after Cook County Circuit Court Judge Sophia Hall denied a motion filed by same-sex marriage opponents, seeking to dismiss the lawsuit.

Same-sex marriage supporters have said they're confident the ban will be tossed out as unconstitutional.

Opponents, however, vowed to continue fighting.

Paul Linton, an attorney for the Thomas More Society, which has joined the case on the behalf of same-sex marriage opponents, said, "We're confident that ultimately the Illinois laws on marriage will be upheld by our courts."

The defense in the case has claimed in legal filings that the ban on same-sex marriage protects traditional marriage, the state's interest in procreation, and encouraging families with a mother and father who are both related to their children.

Linton claimed victory in the judge's ruling, as Hall dismissed three of the five counts filed by the plaintiffs in the lawsuit.

The counts Hall dismissed claimed the state definition of marriage as being between a man and a woman violates the right to privacy, the state's equal protection clause covering gender, and the Illinois Constitution's special legislation clause, which prohibits any "special or local law when a general law is or can be made applicable."

The counts that remain claim allege the ban violates the due process rights of gay and lesbian couples, and discriminates against them under the state's equal protection clause covering sexual orientation.

"The important thing is that the court found that we could move forward on our fundamental right-to-marry claim, and on the claim that the marriage ban in Illinois discriminates against lesbian and gay couples," said Camilla Taylor, one of the attorneys for the plaintiffs.

Danielle Cook, 51, and Suzie Hutton, 44, also are plaintiffs in the case, and said they are excited and encouraged by Friday's ruling.

"All I know is that I love Suzie, and I want to be married to her, and I want to be able to call her my wife, and I want to be able to call Caleb my son," Cook said.

"We want to be able to legally say 'we have a marriage,'" Hutton said.

Cook County Clerk David Orr officially was named as the defendant in the lawsuit, but has refused to defend it, and effectively has become a plaintiff, as county clerks from downstate Tazewell and Effingham counties have been allowed to defend the state's ban on same-sex marriages.

Orr said he fully supports the plaintiffs. For years, he has said he would like to be able to issue marriage licenses to gay and lesbian couples, but has been unable to do so, because of the state's law.

"The fact that we've been denying people these rights for a long time it's a travesty," Orr said.

Attorneys for the plaintiffs said they'd be happy to drop their lawsuit if lawmakers approve same-sex marriage legislation.

The Illinois Senate passed a same-sex marriage proposal on Valentine's Day this year, but the Illinois House has yet to vote. House sponsors have said they hope to have enough votes lined up by the fall veto session.

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