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ACLU lawsuit challenges Illinois gay marriage ban

CHICAGO — More than two dozen gay and lesbian couples filed lawsuits Wednesday arguing that it’s unconstitutional for Illinois to deny them the right to marry, a move advocates hope will lead to legalized same-sex marriage.

The two lawsuits — backed by the American Civil Liberties Union of Illinois and the New York-based Lambda Legal — include couples from the Chicago area, Bloomington and Marion. Both challenge a state law that defines marriage as between a man and woman, arguing that the Illinois Constitution guarantees the right for same-sex couples to marry under due process and equality clauses.

Legislation to eliminate language that prohibits gay marriage is pending, but a vote isn’t expected before the session is scheduled to end this week. And although Illinois enacted same-sex civil unions last year, the couples in the lawsuits said the limited rights and protections make them feel like second-class citizens.

Lambda Legal’s lawsuit, which has 16 couples, includes Chicagoans Patrick Bova and Jim Darby. They’ve been together for 48 years and hope to marry by their 50th anniversary. They entered into a civil union last year, but said they want their relationship to be recognized in the same way as their heterosexual friends.

“I have bought so many toasters for so many weddings,” Darby joked Wednesday at a news conference. “I want someone to buy me a toaster.”

It’s unclear how Illinois will handle the legal process, but attorneys are ready to take the case to the state Supreme Court. The defendant named in the case, Cook County Clerk David Orr, is personally in favor of gay marriage, as is Illinois Gov. Pat Quinn.

Messages left for Cook County State’s Attorney Anita Alvarez, who would represent Orr, were not immediately returned Wednesday.

The 25 couples in both lawsuits tried to apply for marriage licenses in Cook County, but were denied. A spokeswoman said Orr was out of the country and had not seen the lawsuit, but issued a statement on his behalf.

“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,” he said. “I hope this lawsuit clears the last hurdle to achieving equal marriage rights for all.”

Currently, the District of Columbia and six states — Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont — have legalized gay marriage. The Maryland General Assembly approved same-sex marriage this year, but a petition drive is underway and the new law is likely to be the subject of a statewide referendum in November. If the law stands, it would take effect Jan. 1, 2013.

Courts decided for gay marriage in Massachusetts, Connecticut and Iowa. A lawsuit challenging an Iowa law that barred gay marriage prompted the Iowa Supreme Court to legalize it in 2009.

Lambda Legal, a national legal organization that advocates for the civil rights of homosexuals, bisexuals, transgender people and those with HIV, filed the Iowa lawsuit in 2005, and advocates say the time for Illinois is now.

Recent nationwide polls show public support for same-sex marriage has steadily increased. President Barack Obama said earlier this month that he endorsed gay marriage, and Quinn has stepped up his public support.

“We’ve waited long enough,” said John Knight, director of the Lesbian, Gay, Bisexual, Transgender Project of the ACLU of Illinois.

Illinois’ civil unions give same-sex couples some, but not all, of the same legal rights and protections as marriage, such as the power to decide medical treatment for a partner and to inherit a partner’s property. When that law was approved last year, opponents — including some religious and conservative groups — said it was a step toward gay marriage.

“The courts shouldn’t mandate it. Nobody should mandate homosexual marriage,” said Colleen Nolen, the Illinois director of the conservative Concerned Women for America.

The Chicago-based Thomas More Society, a public interest law firm that opposes gay marriage, said the lawsuits would not hold up in court under the constitutional arguments. Executive director Peter Breen said only a handful of states have succeeded in doing so.

“Going around the will of the people is not the right way to change an institution that has thousands of years of history and is sound in its reasons for existing,” Breen said.

Lambda Legal and the ACLU share the same goal of legalization, but decided to pursue separate lawsuits because the groups have different missions. The lawsuits also slightly differ in legal reasoning.

Plaintiffs in the ACLU lawsuit, which includes nine couples, are Chicago police detective Tanya Lazaro and systems analyst Elizabeth Matos. The women, who’ve been together 15 years and have two children, reject the notion of a civil union.

“It’s not the same thing as a marriage. We want our relationship, our love and our commitment we’ve shown for 15 years to be recognized like everybody else’s,” Lazaro said. “When you’re growing up, you don’t dream of civil unions.”