Balkinization: Illinois Same-Sex Couples Claim "Only Marriage Will Do" -- and Public Officials Agree

Illinois Same-Sex Couples Claim "Only Marriage Will Do" -- and Public Officials Agree

Linda McClain

“Only marriage will do” is the claim made by the twenty five same-sex couples, represented by Lambda Legal Defense and Education Fund and the ACLU, in two separate lawsuits filed, on May 30, in Illinois state court (the Circuit Court of Cook County). (The Lambda suit comprises sixteen couples, and the ACLU suit, nine.) Many of these couples entered into civil unions in Illinois after the legislature enacted the Illinois Religious Freedom Protection and Civil Union Act (Civil Union Act), which went into effect just over a year ago, on June 1, 2011. Some have not done so because they view civil unions as reinforcing their “status as second-class citizens.” And a few couples married in Canada, where same-sex marriage is legal.

Whatever their relationship status, the common complaint of these twenty five same-sex couples is that Illinois’s “defense of marriage act,” the Illinois Marriage and Dissolution of Marriage Act (IMDMA), which bars them from marrying or from having their out-of-state marriage recognized in Illinois, violates the Illinois constitution. They assert that the IMDMA violates the Due Process Clause of the Illinois Constitution (because it denies them the fundamental right to marry, to privacy, and to family integrity) and the Equal Protection Clause (because it discriminates on the basis of sexual orientation and of sex). The Lambda lawsuit also invokes the Illinois Constitution’s guarantee against the legislature passing a “special law, when “a general law is or can be made applicable.” It contends that IMDMA prefers different-sex couples to same-sex couples, treating the former as “members of more worthy families.”

One remarkable feature about these lawsuits is that prominent public officials in Illinois support them. The lawsuits name as defendant David Orr, in his official capacity as Cook County Clerk, because clerks employed in his office declined to issue marriage licenses to the plaintiffs. On May 30, Orr issued this public statement: “The time is long past due for the State of Illinois to allow county clerks to issue marriage licenses to couples who want to make that commitment. I hope this lawsuit clears the last hurdle to achieving equal marriage rights for all.” On the relationship between civil unions and marriage, Orr states: “In Cook County alone, we issued nearly 2,500 civil union licenses since June 1, 2011. This outpouring is a testament to the thousands of families who are denied legal protections which opposite-sex couples take for granted.” Orr notes that Illinois has “tried to narrow the gap between discrimination and equal rights,” but that even the civil union law is not a permanent solution. Rather, “marriage, like a civil union, should be a gender-blind covenant.”

Another public official, Lisa Madigan, the Attorney General of Illinois, has filed a petition on behalf of the State of Illinois to intervene in the two lawsuits “to present the Court with arguments that explain why the challenged statutory provisions do not satisfy the guarantee of equality under the Illinois Constitution.” Thus, the Attorney General seeks to intervene not to defend the constitutionality of IMDMA, but to point out its constitutional infirmity.

(Not in response to last week’s lawsuits, but to the statement by President Obama (former Illinois senator) in support of allowing same-sex couples to marry, Governor Pat Quinn also indicated his support for “marriage equality.” Quinn, however, directed his hopes to the legislature, where a same-sex marriage bill has been reportedly stalled. For that matter, the ACLU and Lambda would welcome securing marriage equality through the legislative process, but efforts for the last several years have – so far – not been successful.)

The substance of plaintiffs’ arguments that “only marriage will do” warrants more attention than I can give in this posting. However, their arguments echo those made in other constitutional litigation, in legislative chambers, and before commissions on marriage equality and on the effect of civil unions. First, they make dignitary and expressive arguments: “only marriage will do” because it is the universally respected and recognized way to signify permanent commitment. Civil unions simply do not garner the same respect; nor do they satisfy a couple’s desire to send a message to family, friends, and community about what their relationship means. The complaints include poignant examples of the impact of this two-track system on children, who do not understand why the label “marriage” is withheld from their parents’ relationship. Second, they make arguments about tangible benefits not accorded to plaintiffs – and tangible harms suffered – despite the promise of civil unions to afford all the tangible benefits, protections, and obligations of marriage, but without the name, “marriage.” Civil unions are still “novel” and “less familiar” than marriage. Third parties, such as employers, hospital and medical personnel, teachers, and the like, simply do not treat partners to civil unions as they would treat spouses or married co-parents.

On why “only marriage will do,” consider again Lambda’s invocation of the Illinois Constitution’s bar on “special” legislation, when general laws will do. The complaint asserts that plaintiffs are “similarly situated to” different-sex spouses in every relevant respect. They and their children are “as worthy” of respect and dignity as different-sex spouses and their children. However, because of IMDMA, different-sex couples receive the “selective honor” of access to marriage and “are “promoted as members of superior families” – a defect the civil union law did not “cure.” These new lawsuits highlight how much issues of dignity, respect, and worth are at the core of the battle over access to civil marriage. They also highlight, notwithstanding claims that allowing same-sex couples to marry will sever any connection between marriage and child rearing, that an animating concern in these lawsuits is precisely child well-being and ensuring that children do not feel that their government has “branded” their family as inferior.

Posted 11:15 AM by Linda McClain [link]