Fannie's Room: Lambda Legal Files Marriage Equality Suit in Illinois

Lambda Legal has filed a lawsuit in Illinois against the Cook County
Clerk challenging the state's ban on civil marriage between two people of
the same sex.

For a brief background, while Illinois' Constitution does not define marriage as only between one man and one woman, its marriage statute does. As of about a year ago, two people of the same sex (as well as different-sex partners) have been able to enter into civil unions, granting the state-level rights of marriage. (Because of the federal Defense of Marriage Act, however, they still cannot obtain the federal rights of marriage).

In the complaint, the 32 plaintiffs allege that the Clerk has refused to issue them marriage licenses solely because they are gay or lesbian and seeking to marry someone of the same sex. They further claim that this refusal harms them and their children.

The complaint references the insecurity that the plaintiffs' children feel with respect to their parents' lack of ability to obtain a marriage license with one another. The phrase "civil union" conveys the "ever-present possibility that others may question their familial relationship - in social, educational, medical, or law enforcement settings and in moments of crisis - in a way that spouses can avoid by simple reference to being married."

From a constitutional standpoint, the complaint argues that the denial of marriage licenses to same-sex couples is a violation of the Illinois Constitution by (a) denying the plaintiffs the "fundamental right to marry, the fundamental right of privacy and guarantee of personal liberty, and penalizes Plaintiffs' self-determination in the most intimate sphere of their lives" without having "compelling or otherwise sufficient justification" to do so, and (b) denying them equal protection of the laws on the basis of sexual orientation and sex.

The complaint also alleges that the ban reflects "animus, moral disapproval and antipathy toward lesbians and gay men."

But that's not the harm I want to talk about today. Instead, I want to focus on the word "marriage" as a meaningful indicator of two people's status with respect to one another- and the possible harms that result in denying same-sex couples that legal status.

Quantifiable harms such as inability to file taxes jointly, to obtain a green card marriage, and to receive Social Security benefits are easier to calculate than the mental and emotional harms of not being able to refer to oneself as legally married. As such, I would compare the harms that many same-sex families endure to pain and suffering damages in a lawsuit and would include things like mental distress, embarrassment, and stigma.?

These harms likely seem minimal, wishy-washy, and insignificant to some, especially those who are able to marry their chosen partners. So, I hope people who are dismissive of these harms might try to imagine putting themselves in the position of same-sex couples here, although I do recognize that a great many people are missing some sympathy chips in this larger debate.

From the complaint: "civil marriage plays a unique role in society as the universally recognized and celebrated hallmark of a couple's commitment to build family life together." So, while civil unions grant legal benefits of marriage, denying same-sex couples imposes a stigma that brands same-sex families as "inferior." "Without access to the familiar language and label of marriage," same-sex couples are unable to obtain the respect for their commitment that married couples can instantly obtain by saying they are married.

Speaking from my personal experience, I would echo this harm.

My partner and I are in a legal civil union. This status, in my experience, is not widely recognized outside of LGBT circles or those who pay attention to the wider "marriage debate."

When trying to obtain a copy of our license at a Currency Exchange, for instance, the clerk gave me a puzzled look when I explained that I needed a copy of my civil union license. It wasn't until I explained, "You know...a marriage license.... for same-sex couples....?" that she understood.

Earlier this year, I was hit by a car. While I thankfully did not suffer major physical injuries, I had to deal with an adversarial insurance company and claims adjustor who did not understand what I meant when I said I was covered under my "civil union partner's" insurance. Because I am both an attorney and pretty feisty, I knew what to argue, how to argue, and I was able to file a successful claim and complete the necessary paperwork. I can imagine that for non-attorneys in civil unions, the barriers to securing these rights that many married couples have the privilege of taking for granted, would be too cumbersome to deal with.

Not being able to produce a marriage license, not being able to call my partner my legal wife or say we're legally married has also meant, in these situations, not being able to "come out" on my own terms. Many LGBT, including myself, prefer to out ourselves in spaces where we feel safe enough to do so. It's a survival strategy born of lived experiences of people expressing animus toward us or people like us.

By not being able to simply refer to my status as married in these interactions with various bureaucrats, I have had to out myself to strangers, in public, and in crowded lines in order to obtain basic documents and file claims.

And now, we still juggle the terminology. We find that how we refer to ourselves differs depending on the context. To each other and our close circle of friends, we're married. To our state, we're civil union'ed sometimes and "as if married" other times. To our federal government and some states, we're legal strangers.

It is a strange semantic game we continually play. We are not allowed to say we are legally married, because some feel that the universal, enduring "core" of marriage can only exist between a man and a woman (at best) or because they have outright bigoted reasons for opposing equality (at worst). Yet, perhaps paradoxically, it is only by invoking the word marriage that I am able to convey to strangers my relationship to my partner. Civil union is too new. Too unrecognizable. Too unfamiliar.

Which, of course, begs the question, if the statuses are so legally similar is it really logical for the state to make the distinction at all?

[Cross-posted: Family Scholars Blog]

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