(MCT) — The gay and lesbian civil rights movement in Illinois has long worked on forging a legislative path to marriage equality, buoyed last year by the passage of a law allowing same-sex civil unions.
But with uncertainty about a gay marriage bill moving through Springfield any time soon — the House bill introduced this year was pulled midway through the session — advocates are opening up a new path.
The gay rights group Lambda Legal and the American Civil Liberties Union of Illinois each plan to file a lawsuit Wednesday against the clerk of Cook County, claiming that not issuing marriage licenses to gay and lesbian couples violates the equal protection and due process clauses of the Illinois Constitution.
Activists say they will continue to press lawmakers to legalize same-sex marriage. But these lawsuits mean that the judicial system, and possibly the Illinois Supreme Court, will play a role as well.
"We always thought this was something that had to happen," said ACLU attorney John Knight. "We think it's time to try in the courts, and we're optimistic about our chances."
President Barack Obama formally endorsed same-sex marriage earlier this month, and his statement was echoed by Gov. Pat Quinn.
"We feel like we're at a tipping point," said Camilla Taylor, a Lambda Legal attorney who headed up a similar case that led to the legalization of gay marriage in Iowa. "You reach a point where you can no longer tell these families that they should hold off. You lack the justification when we reach a national moment, when it's clear that our time is now."
A total of 25 couples from across the state are plaintiffs in the two lawsuits. Each couple tried to get a marriage license from the Cook County clerk's office in May and was denied based on the Illinois Marriage and Dissolution of Marriage Act, which prohibits marriage "between 2 individuals of the same sex" and states: "A marriage between 2 individuals of the same sex is contrary to the public policy of this State."
Cook County Clerk David Orr's office issued a statement from the clerk, who is out of the country: "The time is long past due for the state of Illinois to allow county clerks to issue marriage license to couples who want to make their commitment. I hope these lawsuits are the last hurdle to achieving equal marriage rights for all."
Because the governor has voiced his support for same-sex marriage, it's unclear whether the state will fight the lawsuit. Obama has instructed the U.S. Department of Justice to stop defending any lawsuits against the federal Defense of Marriage Act, which defines marriage as the legal union of one man and one woman.
Quinn's office did not respond to a request for comment, and the Cook County state's attorney's office declined to comment before seeing the lawsuit.
Currently six states and the District of Columbia allow same-sex marriages, and the issue remains divisive. North Carolina recently became the 31st state to ban gay marriage with a constitutional amendment, and while national polls have shown a strong swing toward acceptance of same-sex marriage, it has been defeated in all 32 states where it has been on the ballot.
Peter Breen, executive director and legal counsel of the Chicago-based Thomas More Society, which opposes gay marriage, said he would expect the state's attorney and the attorney general's office to "defend the constitutionality of state laws."
"We would expect them to forcefully defend the state's marriage law," Breen said. "We will provide whatever assistance we can to help them in that defense."
Robert Gilligan, executive director of the Catholic Conference of Illinois, said the lawsuits show that the gay rights advocates who fought for civil unions never intended to be content with that law.
"Civil unions afford all the benefits of marriage," he said. "The justification for passage of civil unions was to get all those legal rights. But we had said all along that civil unions weren't the issue and that same-sex marriage was really the issue. This clearly proves our point, that really what they want is marriage."
Breen said he doesn't believe the equal protection and due process arguments are applicable to the issue of same-sex marriage: "Conceptually, when you look at the foundation of the country and the fact that the folks who gave us the equal protection and due process guarantees would have rejected same-sex marriage, to turn around and try to use those same clauses to escort this new legal construct into existence makes no sense."
The two Illinois lawsuits are similar to ones filed in California not long after the state enacted a domestic partnership law that provided the legal equivalent of civil unions. The suits in California led the high court there to rule that it was unconstitutional to ban same-sex marriage. But that ruling was eventually trumped by Proposition 8, a ballot initiative that barred gay and lesbian couples from marrying.
That turn of events in California is one reason some activists would prefer to win marriage equality through the Legislature, believing it puts same-sex marriage rights on more secure footing.
Knight, the ACLU attorney, said that he is confident same-sex marriage rights can be won through the state's judicial system and that there is no reason to wait for lawmakers to act: "When people think about their love and commitment to one another, they think about marriage. Civil unions feel like it's entering into something for another reason."
Carlos Briones and Richard Rykhus, of Evanston, are plaintiffs in the ACLU suit. They've been together for 11 years and have a 7-year-old son, Ty.
After Obama expressed his support for same-sex marriage, the couple had a talk with their son about their status — Briones and Rykhus were married in Canada, and that marriage is now recognized in Illinois as a civil union.
"Most couples who've been together in a long-term, committed relationship like we have don't have to give a 10-minute explanation to their children about how their relationship is or is not recognized," Rykhus said. "We just want that same recognition."
Undoubtedly, one argument against these lawsuits will be that the state's civil union law — enacted last June — provides same-sex couples with the same state-level rights as married couples.
Attorneys from both groups filing the lawsuits argue that rather than leveling the playing field, civil unions have served to reinforce discrimination against gay and lesbian couples.
"We've had a year of civil unions," said Knight, the ACLU attorney. "We understand and have seen and talked to a number of people about the problems with civil unions. It's as we expected. You provide a different and new and not terribly understandable relationship status, and you send a pretty loud message that gay and lesbian couples aren't good enough for the honored tradition of marriage."
Lambda Legal plaintiffs Theresa Volpe and Mercedes Santos, of Rogers Park, have been together for 20 years and have two children, ages 4 and 7. On the first day civil unions could be conducted in Illinois, Volpe and Santos joined more than two dozen other couples for a ceremony in Millennium Park.
"After having a civil union for a year now, it just kind of defined even more the differences between our family and other families who are married," Santos said.
"No one really understands what a civil union is," Volpe added. "Our daughter had to explain that to her classmates. We shouldn't have to explain that. Our daughter shouldn't have to explain that."