Illinois ACLU and Lambda Legal File Suits for Marriage Equality

On May 30, 2012, Lambda Legal and the American Civil Liberties Union (ACLU) of Illinois filed coordinated lawsuits on behalf of 25 same-sex couples who sought and were denied marriage licenses in Illinois. The 16 couples named in Darby v. Orr and the nine named in Lazaro and Matos v. Orr come from diverse backgrounds and hail from all over Illinois.

Some have sought civil unions in the year since the Illinois Religious Freedom Protection and Civil Union Act (750 ILCS 75) went into effect, others have had marriages celebrated in other jurisdictions converted to civil union status within Illinois, and still others have declined to seek civil unions.

"It's not enough. [Couples in civil unions] are not included, honored, or respected in the way married couples are....They're not just seeking legal protections, they're seeking recognition of their love, commitment and devotion," said Ed Yohnka, director of communications and public policy for ACLU of Illinois, of the couples named in the two suits.

Richard Mohr, Professor Emeritus of Philosophy at the University of Illinois, Urbana-Champaign, and author of "The Long Arc of Justice: Lesbian and Gay Marriage, Equality, and Rights," also sees an important moral issue at the heart of both cases.

"The practice of separate-but-equal is morally unequal, because the practice treats one element in the equation as having less moral worth than the other, typically as being disgusting and polluting," said Mohr. "Note that one doesn't have to hate something to find it polluting and disgusting. You never hear people say they hate pus or excrement, and yet they are disgusted by them. So when straight folk say they don't hate gay folk, so that separate-but-equal is okay after all, their point, even if true, is irrelevant. The question is whether the separate-but-equal treatment of gays views gays as having less moral worth than straight people, and certainly it does."

In practical terms, Darby and Lazaro and Matos cover substantially the same legal territory. Both claim that the Illinois Marriage and Dissolution of Marriage Act of 1996 violates the Illinois State Constitution's guarantees of due process and equal protection, freedom from gender discrimination and the right to privacy.

The cases reflect slightly different legal emphases and the complementary, but distinct histories and perspectives of Lambda Legal and the ALCU of Illinois, but the primary motivations in filing coordinated cases, according to Yohnka, were the desire to honor longstanding client relationships and to maximize the number of couples who would be named in the suits.

The filing date, just days before the one-year anniversary of 750 ILCS 75, was more practical than symbolic. According to Christopher Clark, senior staff attorney with Lambda Legal, marriage equality cases have been near litigation at many points in the past 10 years.

"But when civil unions passed, you don't file the next day and say 'It didn't work,'" said Clark. "A year on, we know that Illinois same-sex couples have had similar experiences to those in other states that have experimented with civil unions...There's the stigma, the sting, of second-class citizenship."

That reality of second-class citizenship is outlined not only in both complaints, but also in a June 1 report published by Equality Illinois. The report draws on survey data from the Illinois Civil Union Tracker, a joint effort by Equality Illinois and Lambda Legal, and stories from those who contacted Equality Illinois independently.

Couples reported considerable financial burdens, discrimination, lack of respect and bureaucratic hurdles when dealing with government and social institutions. Many difficulties stem from the fact that civil unions are poorly understood, leaving couples with "no box to check," no easily understood way to describe their own relationships, and no place in the cultural conversation for them or their families. Clark believes that marriage equality would win both practical and symbolic gains for same-sex couples.

"When the government assigns a separate, lesser status to couples, businesses, institutions and individuals get the message that it's OK to discriminate," he said.

Furthermore, Clark characterized the federal Defense of Marriage Act (DOMA) as "on its last legs," based on the recent ruling by the First U.S. Circuit Court of Appeals that the act violates the U.S. Constitution's guarantee of equal protection. Should DOMA be repealed, same-sex couples married in Illinois would potentially be eligible for federal benefits and protections, even if they left Illinois and lost state benefits and protections.

But Clark cautioned that legal landscape for same-sex couples is murky, and these are sometimes determined by state of residence, and sometimes by the state in which the marriage was celebrated.

"Both the lawsuits and legislation promote critical conversations on the impact of discriminatory laws on same-sex couples and their families. Pursuing two strategies increases the odds of success in Illinois," said the Human Rights Campaign of these efforts by Lambda Legal and the ACLU. More generally, marriage equality in Illinois as received recent boosts from statements of support by Governor Pat Quinn as well as Cook County Clerk David Orr, the defendant named in both suits.