Same-sex couples file class action suit over Illinois' gay marriage law; say being forced to wait until June violates their rights

By Bethany Krajelis | Dec 6, 2013

Four Cook County same-sex couples filed a class action lawsuit Friday in Chicago’s federal court, claiming their constitutional rights are being violated by having to wait to wed until Illinois’ recently-signed gay marriage law takes effect in June.

The four couples who sued Cook County Clerk David Orr assert that allowing them “to marry now is the only way to avoid denying them constitutionally guaranteed right to marry.”

In their complaint, they ask the federal court to issue a permanent injunction to prevent the enforcement of current statutes banning gay marriage, as well as a temporary restraining order to allow same-sex couples who have “an urgent need to marry” before the new law’s June 1, 2014 effective date.

They also want the court to declare that their action can proceed as a class action and to find that Orr’s inability to issue them marriage licenses violates their due process and equal protection rights under the U.S. Constitution.

The named plaintiff couples -- Brenda Lee and Lee Edwards, Patricia Tucker and Ingrid Swenson, Elvie G. Jordan and Challis Luann Gibbs, Ronald Dorfman and Kenneth Y. Ilio – brought the suit on behalf of themselves, as well as a proposed class and sub-class.

According to the suit, the class would include “All persons who reside in Illinois who apply for marriage licenses and who, but for their sex, satisfy all legal requirements for marriage under Illinois law.”

Jordan, Gibbs, Dorfman and Ilio also brought the suit on behalf of a subclass of “those class members who have a need to marry prior to June 1, 2014 due to a life-threatening illness of one or both parties.”

The suit notes that Gibbs, who recently entered into a civil union with Jordan after 20 years together, was diagnosed last month with stage four neuroendocrine cancer.

Dorfman has systolic congestive heart failure and his cardiologist is not sure if he will survive until June, according to the complaint that adds he and Ilio have been together for 20 years and were the first registered domestic partners in the county.

The suit states that these couples, as well as all of the plaintiffs, want to have protections that only marriage can provide, such as equal rights in hospital settings and tax and social security benefits as surviving spouses.

The couples contend the proposed class could include thousands of same-sex couples and that hundreds of those couples could fall into the sub-class they contend may never get the chance to get married if they have to wait until the law’s effective date.

The suit comes just weeks after Gov. Pat Quinn approved a measure amending the Illinois Marriage Act to allow same-sex couples to legally marry. Quinn on Nov. 20 signed into law Senate Bill 10, which was passed by both chambers of the Illinois General Assembly on Nov. 5.

Under the state Constitution, legislation that is passed after May 31 can’t “become effective prior to June 1 of the next calendar year unless the General Assembly by the vote of three-fifths of the members elected to each house provides for an earlier effective date.”

In the case of SB10, the plaintiffs note in their suit, lawmakers did not provide for an earlier effective date and as such, “without action from this Court, the Illinois marriage ban will continue to be enforced until June 1, 2014.”

The recently-filed suit over Illinois’ gay marriage law also comes on the heels of a federal court ruling that came down late last month, when Orr was ordered to issue a marriage license application to a same-sex couple, in which one of the women is suffering from terminal cancer.

The couple -- Vernita Gray and Patricia Ewert – made history on Nov. 27, when they became the first same-sex couple to get married in Illinois, according to published media reports.

According to the suit, all four of the named plaintiff couples “have formed committed, enduring bonds equally worthy of the respect afforded by the state of Illinois to different-sex couples through marriage.”

“Yet,” it adds, “the state of Illinois, without any adequate justification, continues to enforce statutes excluding lesbian and gay couples from marriage in Illinois … which absent relief from this Court, will remain in effect until June 1, 2014.”

Although the plaintiffs applaud the passage of Illinois’ same-sex marriage law, they claim the continued enforcement of current statutes preventing gay couples from getting married violates their constitutional rights.

It “sends a purposeful message that lesbians, gay men, and their children are second-class citizens who are undeserving of the legal sanction, respect, protections, and support that different-sex couples and their families are able to enjoy through marriage,” the suit asserts.

The couples also contend that the ongoing enforcement of the gay marriage ban “encourages and leads to discrimination by others,” spurring fear that “that they will face discrimination in health care settings and elsewhere as a result of their inability to marry, and confusion concerning their civil union and domestic partnership status.”

Given that lawmakers approved the measure and Quinn already signed it into law, the suit alleges that “there is no legitimate governmental interest served by denying same-sex couples the ability to marry. There is no rational reason to make these couples wait.”

The plaintiffs are represented by more than a dozen attorneys at Kirkland & Ellis LLP, Lambda Legal Defense and Education Fund Inc., Roger Baldwin Foundation of ACLU Inc., and Miller Shakman & Beem LLP, all in Chicago.

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