Advocates to take same-sex marriage fight to court

May 30, 2012

James Darby, 80, and Patrick Bova, 73, have been together for 48 years and live together in Hyde Park, Chicago. James, a proud veteran, was born on the south side of Chicago, where he worked in the stockyards before enlisting in the Navy to serve in the Korean War.

Just two weeks after Illinois' governor announced his public support for same-sex marriage, gay rights advocates are now taking their marriage rights fight to court.

Twenty-five same-sex Illinois couples filed two civil lawsuits Wednesday after being turned away when they tried to apply for marriage licenses in Cook County. The suits claim County Clerk David Orr violated the plaintiffs' equal protection, privacy and due process rights under the state constitution when his office denied the marriage licenses.

"I've bought so many toasters for so many other people's weddings. I want somebody to buy me a toaster," said James Darby, 80, who is a plaintiff along with his partner, 73-year-old Patrick Bova.

Both men have been together for nearly five decades, and they entered into a civil union last summer. But a year after their ceremony, Darby said the couple has decided their union just isn't the same as full marriage.

"Tell that to anybody you know, say 'We are civilally unionized,'" Darby said. "And they will say, 'What is that? That's not a marriage. That's not the real thing.'"

Illinois' civil union law allows same-sex couples many of the same legal rights as married couples, such as hospital visitation rights and the ability to file a joint state tax return. But the creation of a separate institution for gay couples - "a mundane entryway to spousal benefits" - is discriminatory, one of the civil complaints argues.

"The novel civil union designation witholds from same-sex couples the reverance and recognition associated only with marriage," the suit states.

The legal challenges are being argued by the American Civil Liberties Union of Illinois and Lambda Legal, a legal rights group for gays, lesbians, bisexuals and transgender people. Illinois is currently one of 38 states that prohibits same-sex marriage, but the legal environment could be getting friendlier for gay rights advocates. Neary 2,500 same-sex couples in Cook County have entered into civil unions, which offer some of the same legal protections as marriage, after lawmakers approved that law last year. And earlier this month, Democratic Gov. Pat Quinn announced for the first time that he supports same-sex marriage, which raises questions about whether he would order his administration to defend a legal challenge to the state's current marriage law.

A spokeswoman for Quinn said Wednesday morning that his office has not yet seen the lawsuits, but added that "the governor supports marrige equality."

Representatives for both the Illinois Attorney General and the Cook County State's Attorney would not say whether they plan to mount a defense of Illinois' current same-sex marriage prohibition.

To opponents of gay marriage, Wednesday's lawsuits confirmed what some had feared all along: that 2010's state civil union law was another strategic step on the path toward full marriage for gays and lesbians.

"The actions in other states where proponents have used the courts to advance their agenda and they have been successful causes us reason to be concerned," said Robert Gilligan, Executive Director of the Catholic Conference of Illinois. "And the governor's prounouncement ... is clearly a step in the wrong direction."

But opponents like Peter Breen, with the Chicago-based Thomas More Society, sounded a more pugilistic note.

"This lawsuit has no merit under the Illinois Constitution and its primary purpose is to excite a political and fundraising base in a heavily contested political cycle," Breen said in a statement.

Legislation to allow same-sex marriage is stalled in the Illinois General Assembly, and does not seem likely to pick up any last-minute steam as state lawmakers grapple with budget issues ahead of Thursday's scheduled adjournment. Nonetheless, State Rep. Greg Harris, the openly gay Chicago Democrat who sponsored the civil union bill and the current gay marriage proposal, said winning full marriage has always been the end game.

"I think that civil unions was an important step along the way. It granted some basic legal protections. But separate and unequal is not equal," Harris said. 

Cook County Clerk David Orr, a long-time proponent of gay marriage, is being sued only in his official capacity and quickly released a statement supporting the lawsuit against him.

"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," Orr said in the statement. "I hope this lawsuit clears the last hurdle to achieving equal marriage rights for all." 

Six states and the District of Columbia currently allow same-sex marriage, according to the National Conference on State Legislatures. Illinois is one of five states that allows civil unions for gay couples.

President Barack Obama sparked new hope among the American gay rights movement earlier this month when he announced in an interview with ABC News that he now supports same-sex marriage, after earlier opposing it. In February, Mr. Obama ordered the U.S. Justice Department to stop defending the federal Defense of Marriage Act, which defines marriage as being between one man and one woman.