Lambda Legal Defense and Education Fund and the ACLU each filed a lawsuit today seeking equal marriage rights for same-sex couples in Illinois, as Metro Weekly first reported last night. The lawsuits, which have been brought in the names of 25 couples altogether, both were filed in state court against Cook County Clerk David Orr and are based on alleged violations of the Illinois -- and not the United States -- Constitution.
Both lawsuits argue that under the Illinois Constitution, it is unconstitutional to allow same-sex couples only to enter into civil unions when opposite-sex couples have marriage, as well as civil unions, available to them.
Lambda Legal's National Marriage Project director, Camilla Taylor, said in a statement, "One year ago same-sex couples across the state were joined in civil unions. The experiences of the couples and the children in this suit show the hurt, confusion, and private bias that they have encountered as they have lived their lives."
John Knight, the director of the ACLU of Illinois' LGBT Project, explained his organization's lawsuit in a statement, saying, "Creating civil unions -- a separate, novel and poorly understood status for gay and lesbian couples -- does not honor the devotion of our families, nor fully protect them, but instead sends a powerful message that our families are inadequate and undeserving. It is time for Illinois to join the growing list of states that provide same-sex couples with the dignity and respect that can only come through marriage."
All of the 16 couples in the Lambda Legal lawsuit requested but were denied marriage licenses by Orr's office over the course of the past several months. One of the nine couples in the ACLU challenge was told that they would be denied a marriage license if they sought one, another couple also wishes to marry, five couples entered into civil unions but would like to marry, and two couples were married in Canada but their marriages are not recognized by Illinois.
In terms of the legal arguments advanced, the Lambda Legal challenge claims that Illinois law, which allows opposite-sex couples to marry or enter into a civil union but only allows same-sex couples to enter into a civil union, violates the Illinois Constitution's guarantees of equal protection because it discriminates against the same-sex couples based on both sexual orientation and sex.
Lambda Legal's complaint in Darby v. Orr also alleges that the state law violates the Illinois Constitution's due process guarantee by limiting the fundamental right to marry and, as the complaint states, the protection of the "guarantees of liberty, privacy, and autonomy" within the context of "familiy integrity" and decision-making about personal relationships.
Finally, the Lambda Legal complaint claims that the marriage laws in Illinois violate the Illinois Constitution's protections against passage of "special legislation" -- the law banning same-sex couples from marrying and only allowing them civil unions -- when a general law -- the state marriage law -- could easily apply to them.
The ACLU complaint -- Lazaro v. Orr -- is similar, focusing on many of the same provisions in the Illinois Constitution. Brought on behalf of nine same-sex couples, the challenge claims that the couples' equal protection, due process and privacy rights are infringed by allowing the couples to enter into civil unions but withholding from them the ability to marry.
The state-court, state constitution-based challenges distinguish the lawsuits from the ongoing Perry v. Brown appeal of the challenge brought by the American Foundation for Equal Rights to Proposition 8 in federal court in California and the Sevcik v. Sandoval federal-court challenge brought by Lambda Legal to Nevada's marriage amendment. Although Illinois has no marriage-limiting constitutional amendment like those present in California, Nevada and more than two dozen other states, it does have a statutory ban on same-sex couples marrying.
The other ongoing marriage equality lawsuit is in New Jersey, was brought by Lambda Legal, alleges both state and federal constitutional violations and is pending in state court there. New Jersey has neither a constitutional amendment nor a statutory ban on same-sex couples marrying, but the state's governor, Chris Christie (R), vetoed a marriage equality bill earlier this year.
Attorneys with Mayer Brown LLP are assisting the ACLU attorneys as co-counsel in Lazaro. Attorneys with Kirkland & Ellis LLP are assisting the Lambda Legal attorneys as co-counsel in Darby.
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[Photo: Screen capture of Lakeesha Harris and Janean Watkins, two of the plaintiffs in the Lambda Legal-backed Illinois lawsuit seeking marriage equality filed today.]