Case: 1:13-cv-08719 Document #: 1 Filed: 12/06/13 Page 1 of 23 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

BRENDA LEE and LEE EDWARDS;

)

PATRICIA TUCKER and INGRID

)

SWENSON; ELVIE JORDAN and CHALLIS )

GIBBS; RONALD DORFMAN and

)

KENNETH ILIO, on behalf of themselves )

and all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

DAVID ORR, in his official capacity as

)

COOK COUNTY CLERK,

)

)

Defendant.

)

Case No. 1:13-cv-8719
Hon. Judge Magistrate Judge

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I. INTRODUCTION

1. Named Plaintiffs Brenda Lee and Lee Edwa rds, and Patricia (“Pat”) Tucker and

Ingrid Swenson, Elvie G. Jordan and Challis Luann Gibbs, Ronald (“Ron”) Dorfm

an and

Kenneth (“Ken”) Y. Ilio, (colle ctively, “Named Plaintiffs”), and the m embers of the Plaintiff

Class (collectively, with the Nam ed Plaintiffs, “Plaintiffs”) are loving , committed same-sex

couples. T he Named Plaintiffs bring this ac tion pursuant to 42 U.S.C. § 1983 on behalf of

themselves and the Plaintiff Class and Subclass, seeking declaratory and injunctive relief for the

violation of Plaintiffs’ rights under the Fourteen th Amendment to the United States Constitu tion

caused by the exclusion of same-sex couples from the freedom to marry in Illinois.

2. Marriage plays a unique role in soci ety as the universally recognized and celebrated hallmark of a couple’s comm itment to build fam ily life together. It confers upon couples a dignity and status of immense im port. Plain tiffs have form ed committed, enduring

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bonds equally worthy of the respect afforded by th e state of Illinois to different-s ex couples through marriage. Yet, the state o f Illinois, w ithout any adequate ju stification, continues to enforce statutes excluding lesbian and gay couples from m arriage in Illinois, 750 ILCS 5/212(a)(5); 750 ILCS 5/201; 750 ILCS 5/203( 2), and 750 ILCS 5/213.1 (collectively, the “marriage ban”), which, absent relief from this Court, will remain in effect until Jun e 1, 2014. The marriage ban singles out lesbian and gay c ouples by excluding them from the freedom to marry based solely on their sexual orientation and their sex.
3. Through Illinois’ m arriage ban and thr ough Defendant’s enforcem ent of that marriage ban, the state of Illinois sends a purpose ful message that lesbians, gay m en, 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.
4. Although the Illinois legislature recently enacted a law th at will allow sam e-sex couples to marry, S.B. 10, Ill. 98th Gen. Assemb., First Reg. Sess. (Ill. 2013), that law does not go into effect until June 1, 2014. The continuation in enforcement of the marriage ban until that date constitutes a violation of the guarantees of Equal Protection and Due Process in the United States Constitution. Allowing Plaintiffs to m arry now is the only way to avoid denying them their constitutionally guaranteed right to marry.
5. The marriage ban inflicts serious and irreparable harm s upon sam e-sex couples. Brenda Lee and Lee Edwards have been together for over 10 years. Although the couple pledged their love to one another in a private cerem ony and formalized their commitment through a civil union, they eagerly await the day w hen they will be legally recognized as m arried spouses. Pat Tucker and Ingrid Swenson have been together for 10 years and wish to m arry because only
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marriage adequately signifies their love and li fe-time commitment and provides the greatest protection for them and their daughter that the la w can afford. Elvie Jordan and Challis Gibbs have been together for 20 years. Elvie and Challis are unmarried, and wish to marry for the same reasons as different-sex couples – to publicly declare their l ove and commit ment before their family, friends and community, and to give one a nother the security and protections that only marriage provides. Ron Dorfman and Ken Ilio have also been together for 20 years and were the first registered domestic partners in Cook County. Like Elvie and Challis, Ron and Ken wish to publicly declare their love and comm itment to one another and obtain the security and protections afforded by marriage.
6. Named Plaintiffs bring this suit on behalf of themselves and all others sim ilarly situated pursuant to 42 U.S.C. § 1983 seeking d eclaratory and injunctive relief on the grounds that the s tate of Illin ois’ continued exclusion of sa me-sex couples from marriage and Defendant’s enforcement of the marriage ban violate the guarantees of Equal Protection and Due Process in the United States Constitution.
7. Named Plaintiffs Elvie Jordan and Challis Gibbs, and Ron Dorfman and Ken Ilio, on behalf of themselves and the subclass who have an urgent need to marry prior to June 1, 2014 due to the potentially lif e-threatening illness of one or both parties, seek a temporary restraining order and preliminary injunction immediately enjoining Defendant and all those acting in concert from enforcing the Illinois m arriage ban. A ll Plaintiffs seek a perm anent injunction that prohibits Defendant David Orr from enforcing the Illinois marriage ban, requires Defendant to issue a m arriage license to Plaintiffs upon thei r application and satis faction of all legal requirements for a marriage in Cook County except fo r the requirement that they be of different
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sexes, and requires Defendant to register their solemnized marriage as is presen tly required for all other marriages. Plaintiffs further seek a declaration that the marriage ban is unconstitutional.
II. JURISDICTION AND VENUE 8. Named Plaintiffs bring this action u nder 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution.
9. Jurisdiction over the federal claims is conferred on this Court by 28 U.S.C. § 1331 and § 1343(a)(3) and (a)(4). The declaratory relief requested is authorized under 28 U.S.C. § 2201. Venue is proper under 28 U.S.C. § 1391.
III. PARTIES A. The Named Plaintiffs 10. Elvie G. Jordan and Challis Luann Gibbs are a lesbian couple residing in Cook County, Illinois. Elvie and Challis have been in a long-term, committed relationship for 20 years and have recently entered into a civil union in the state of Illinois.
11. In November 2013, Challis was diagnosed with stage four neuroendocrine cancer. The cancer is in her vertebrae, epithelial tissue, and liver. Due to the spinal tumors, she cannot ride in a car for more than 30 minutes and has very limited functional capacity.
12. Elvie and C hallis had planned to m arry in June of 2014 when the m arriage ban would be lifted. However, with the recen t news that Challis’ cancer is s preading rapidly, their need to marry is now urgent.
13. Ron Dorfman and Ken Ilio are a gay c ouple residing in Cook County, Illinois. Ron and Ken have been in a long-term, committed relationship for 20 years and were reg istered
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as domestic partners in Cook County in 2004. Ron has s ystolic congestive heart failure and complete blockage of his right coro nary artery. A prior effort to stent this artery has failed. His cardiologist is unoptimistic about his chances of surviving until June 2014 and has urged him to get married as soon as possible.
14. With Ron’s condition deteriorating, he a nd Ken urgently need the security and protections that legal marriage provides.
15. Pat Tucker and Ingrid Swenson are a lesbian couple residing in Cook County, Illinois. Pat and Ingrid have been in a long-term, committed relationship for 10 years and entered into a civil uni on in 2011 in the state of Illinois. Pat is a consultant w ho provides training and technical assistance regarding homelessness to service providers around the country. Ingrid is a p ublic school art teach er. They are b oth legal parents to a th ree-and-a-half year old daughter, Amari. Pat and Ingrid wish to be ma rried as soon as possible in order to obtain the security and legal protections that only marriage provides.
16. Brenda Lee and Lee Edwards are a le sbian couple residing in Cook County, Illinois. Br enda and L ee have been in a long-term committed re lationship for 10 years and entered into a civil union in Illinois on June 2, 2011. Brenda is a minister and a job coach with a community service organization. Lee is a paralegal with a law firm. Brenda and Lee would like to be able to describe themselves as married, the only term that encompasses what they mean to each other.
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B. Class Allegations
17. Named Plaintiffs bring this action for themselves and, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of the following class of persons similarly situated: All persons who reside in Illinois who apply for m arriage licenses and who, but for their sex, satisfy all legal requirements for marriage under Illinois law.
18. Named Plaintiffs Elvie Jordan, Chal lis Gibbs, Ron Dor fman, and Ken Ilio (collectively the “Subclass Representatives”) also bring this action under the sam e provisions of Rule 23 and subsection (c)(5) on behalf of a subc lass 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.
19. The requirements of Federal Rule of Civil Procedure 23 are satisfied in that:
(a) The class and subclass are so num erous that joinder of all m embers is impracticable. F ED. R. CIV. P. 23(a)(1). Upon infor mation and belief, there are thousands of sam e-sex couples in Illinois who would m arry if Illinois law perm itted them to do so. Illinois’ m arriage ban, and Defendant’s enforcement of it, prev ents those couples from marrying. Hundreds of those coup les face or w ill face urgent circumstances such as the Subclass Representatives’ as a result of which a delay in granting them their right to m arry will like ly effectively prevent the m from ever obtaining that right.
(b) There are questions of law and fact common to the m embers of the clas s and the subclass. FED. R. CIV. P. 23(a)(2). Such questions include, but are not limited to: 6

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i. whether Illinois’ marriage ban violates federal substantive due process guarantees, including the funda mental right to m arry, and liberty interests in autonomy, and family integrity and association;
ii. whether Illinois’ marriage ban violates guarantees of equal protection regardless of an individual’s sexual orientation, and sex in relation to the sex of his or her life partner; and
(c) The claims of Named Plaintiffs are typical of those of the class and thos e of the Subclass Representatives are typi cal of the subclass, as their claims all arise from Illinois’ m arriage ban and are based on the sam e theories of law.
(d) Named Plaintiffs and the Subclass Repr esentatives are capable of fairly and adequately p rotecting the interest s of the class and sub class because they do not have any interests antagoni stic to th e class and the subc lass. Named Plaintiffs as well as th e class and the subclass all seek to permanently enjoin the state of Illinois’ marriage ban.
(e) This action is maintainable as a cl ass action under Rule 23(b)(2) because Defendant’s enforcement of the marriage ban applies generally to the class, by precluding all class m embers from marrying. The injunctive and declaratory relief sought is appropriat e respecting the class as a whole. The temporary restraining order a nd preliminary injunction sought is appropriate respecting the subclass as a whole.
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C. Defendant David Orr, Cook County Clerk 20. Defendant David Orr (“Cook County Clerk”) is sued in his official capacity as
Cook County Clerk and has offices at 50 West Washington Street, Chicago, Illinois 60602. The Cook County Clerk is authorized and required by law to issue marriage licenses and certificates for marriage licenses in Cook County. 750 ILCS 5/203.
21. Parties to a prospective m arriage in Cook County m ay apply for and obtain a marriage license from the Cook County Clerk. 750 ILCS 5/203.
22. If all legal requirements for a marriage in Cook County are m et by applicants for a marriage license, the Cook C ounty Clerk “shall issue a licen se to m arry and a m arriage certificate.” 750 ILCS 5/203.
23. A license to marry is effective the day after issuance and permits a marriage to be solemnized only in the county in which it was issued. 750 ILCS 5/207.
24. The marriage certificate for m arriage in Cook County must be completed within ten days after the m arriage is solemnized, an d returned to the Cook County Clerk. 750 ILCS 5/209.
25. The Cook County Clerk m ust register so lemnized marriages and “m ake to the [Illinois] Department of Public Health a return of such marriage” by forwarding required forms and data to the Department. 750 ILCS 5/209, 5/210, 5/211; 410 ILCS 535/23.
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26. Applicants for a m arriage license for a Cook County m arriage must furnish the Cook County Clerk with “satisfactory proof that the m arriage is not prohibited.” 750 ILC S 5/203.
IV. FACTS 27. Plaintiffs are res idents of the State of Illinois who are excluded from m arriage until June 1, 2014. Illinois’ exclusion of Plaintiffs from marriage, and Defendant’s enforcement of that exclusion, subjects Plaintiffs to an inferior “second class” status relative to the rest of the political community and deprives them and their children of equal dignity, security, and legal protections afforded to other Illinois families.
Named Plaintiffs’ Desire to Marry 28. Elvie Jordan and Challis Luann Gibbs r ecently discovered that Challis has stag e
four cancer and m ay not surv ive until June, wh en the coup le had hoped to m arry in Illino is. Fearing that Challis would die a le gal stranger to Elvie, Challis and Elvie arr anged for an employee of Defendant Orr to travel on W ednesday, November 27, 2013, to the hospital room where Challis was staying for treatment, so that Challis and Elvie could apply to enter into a civil union. On Nove mber 29, 2013, Challis and Elvi e entered into a civil union in a cerem ony conducted by a hospital chaplain. However, a civil union is a second tier status for thei r relationship, and Challis and Elvie believ e that their f amily members, including grandchildren, do not understand what a civil union m eans. They wish to marry so that they can comm unicate what they mean to each other in term s that even small children understand. They also wish to marry because m arriage has deep significance a nd value to both of them. Challis puts it this way: “When I die, I want Elvie to be able to sa y, ‘I lost my wife.’ I don’t want her to have to
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say, ‘I lost my civil union partner. ’” As of the da te of filing of this Complaint, Challis rem ains hospitalized.
29. Ron Dorfman and Ken Ilio are a gay c ouple residing in Cook County, Illinois. Ron and Ken have been in a long-term , committed relationship for 20 years and wish to enjoy the dignity and recognition of their relationship that are unique to marriage..
30. With Ron’s heart condition deteriorating, he and Ken urgently fear that Ron m ay not survive to June 2014, in which case they will be permanently denied th e opportunity to declare their love and commitment to one another.
31. Pat Tucker and Ingrid Swenson celebra ted their love and commitment in a n August 5, 2006 ceremony in front of family and friends. And although they entered a civil union in Illinois in order to access the protections it offered, they have always hoped for m arriage because of the societal respect and understanding associated with that status. Only marriage will provide their relationship the resp ect accorded to different-sex relationships. Moreover, only marriage affords them and their daughter the fu ll complement of le gal protections and the security that civ il unions can n ever provide. Accordingly, they wis h to m arry as soon as possible.
32. Brenda Lee, 60, and L ee Edwards, 52, wi sh to m arry each other in order to provide security to each other and because marriage has always been im portant to them . Brenda’s parents have been married for over 65 years and love each o ther deeply. Brenda and Lee wish to share in the joy of being married that Brenda obse rved in her parents growing up. Brenda and Lee also have struggled to explai n their civil union status to people who did not understand what it m eant, including in the course of seeking spousal health insurance, an
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experience that was frustrating and demeaning. Brenda and Lee would like to be able to describe themselves as married, the only term that encompasses what they mean to each other.
33. But for the fact that they are of the same sex, Elvie Jordan and Challis Gibbs, Ron Dorfman and Ken Ilio, Pat Tucker and Ingrid Swenson, and Brenda Lee and L ee Edwards are legally qualified to m arry under the laws of Illinois and wish to m arry in Illinois. Each is over the age of 18 and fully competent, and not precluded from marriage as a result of having another spouse or being closely related to their partner. Each couple is willing to provide the requisite information to receive a m arriage license and to pay the required fee. Each couple is able and eager to assume the responsibilities of marriage.
The Plaintiff Class 34. Each member of the Plaintiff Class is a person who resides in Illinois who applies
for a marriage license to marry someone of the same sex, and who, but for their sex, satisfies all legal requirements for marriage unde r Illinois law. Each mem ber of the Plaintiff Class is over the age of 18, fully competent, and not preclud ed from m arriage as a result of having another spouse or being closely related to the individual they wish to marry.
Illinois Prohibits Marriage of Same-Sex Couples Until June 1, 2014 35. Illinois law excludes lesbian and gay c ouples from marriage. T he Illinois
Marriage and Dissolution of Marriage Act, 750 ILCS 5/201 (the “Marri age Act”) authorizes marriages “between a m an and a wom an,” 750 ILCS 5/201, expressly prohibits m arriage “between 2 individuals of the sam e sex,” 750 IL CS 5/212(a)(5), and states that marriages of same-sex couples are “contrary to the public policy of this state,” 750 ILCS 5/213.1.
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36. The Marriage Act further s tates that any m arriage contracted in another jurisdiction that would be prohibi ted if solemnized in I llinois “shall b e null and void f or all purposes in this state with the sam e effect as though such prohibited m arriage had been entered into in this state.” 750 ILCS 5/216(a). A m arriage between pe rsons of the sam e-sex legally entered into in another jurisd iction is recogn ized in Illino is solely as a civil union. 750 ILCS 75/60.
37. To be valid under the Illinoi s statutes, a m arriage must be “licensed, solem nized and registered” in accordance with the Marriage Act. 750 ILCS 5/207.
38. Plaintiffs are unable to enter into a legally sanctioned civil marriage in Illinois without a marriage license. Common law marriages are not valid in Illinois. 750 ILCS 5/214.
39. Civil marriage plays a unique role in soci ety as the universally recognized and celebrated hallmark of a couple’s comm itment to build fam ily life together. Although civil unions provide substantially sim ilar legal responsi bilities and legal rights to sam e-sex couples under Illinois law, differences rem ain between th e two statuses. Because of these differences, coupled with the stigm a of exclusion and of ha ving their fa milies branded as inferior by th eir government, same-sex couples suffer both tangible and dignitary harms due to the currently stillin-effect marriage ban, all of which are of constitutional dimension.
40. The status of m arriage has unique soci al significance and recognition. W ithout access to the fa miliar language and label o f marriage, Plaintiffs are unable instan tly or adequately to communicate to others the depth or perm anence of their commitment, or to obtain respect for that commitment as others do simply by invoking their married status.
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41. Plaintiffs’ exclusion from marriage frustrates their life goals and dream s, their ability to fulfill their personal values, their happiness and self-determination.
42. There is no social or cultural instituti on, legal m echanism, or status that can substitute for legal m arriage and provide Plaint iffs what marriage would provide them . Civil unions and domestic partnerships are a novel status in Illinois without the same expressive value or communicative weight and si gnificance as m arriage. Ma ny people encountered by civil unionized same-sex couples express confusion, or otherwise indicate that they do not understand what the term “civil union” or “dom estic partnership” means, or what legal protections and responsibilities should accrue to m embers of a civil union or dom estic partnership. Couples relegated to civil unions must explain and defend their family relationship in numerous contexts.
43. Further, the federal governm ent does not accord the sam e recognition and corresponding rights, benefits, obligations, and pr ivileges to couples united in a civil union or domestic partnership that it gives to married couples. For example, under the federal Family and Medical Leave Act, eligible employees may take unpaid, job-protected leave for specified family and medical reasons, with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. See 29 U.S.C. § 2614(c)(1). However, to qualify as a spouse for purposes of this benefit, federal guidance currently requires a couple to be married under the law of “the state where the employee r esides.” See 29 C.F.R. § 825.102; http://www.dol.gov/whd/regs/compliance/whdfs28f.htm (last viewed N ov. 18, 2013). The marriage ban in Illinois prevents couples in civil unions or dom estic partnerships from meeting this requirement, as couples in civil unions or do mestic partnerships are not m arried in the state where they reside, and even if they were to ma rry in another sta te, they still would rem ain ineligible for this federal benefit, which is of particular importance to couples facing serious
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health concerns. See http://www.dol.gov/whd/regs/compliance/whdfs28f.htm (last viewed Nov. 18, 2013). Couples who are in civ il unions or dom estic partnerships, but not married, also will be denied spousal tax benefits , including exemption from certain estate tax obligations. See United States v. Windsor , 133 S.Ct. 2675 (2013); see also http://www.irs.gov/irb/201344_IRB/ar10.html (last viewed Nov. 19, 2013) (for federal tax purposes, the term s spouse, husband, and wife, do not include i ndividuals who have entered in to a civil unio n or domestic partnership, but refer only to those who are validly married under state law).

44. The government’s ongoing enforcement of the marriage ban encourages and leads to discrimination by o thers. Bearin g the im primatur of the governm ent, the State of Illino is’s marriage ban, which relegates sam e-sex couples to the lesser status of civil union or dom estic partnership, not only causes confus ion regarding the legal rights of same-sex couples, but also invites others to follow the governm ent’s example in discrim inating against them. Na med Plaintiffs fear that th ey will face discrimination in health ca re settings and elsewhere as a result of their inability to m arry, and confusion conc erning their civil union and dom estic partnership status.

Illinois Recently Amended the Illino is Marriage Act t o Allow Marriage of Same-Sex Couples

45. On November 5, 2013, both houses of th e Illinois General Assem bly passed

Senate Bill 10, which am ends the Illinois Marriage Act to allow sam e-sex couples to be legally

married in Illinois. S.B. 10, Ill. 98th Gen.

Assemb., First Reg. Sess. (Ill. 2013). This

amendment, however, does not become effective until June 1, 2014.

46. On June 1, 2014, Defendant Cook County Clerk will be required to accept applications to marry from same-sex couples who are of lawful age, are not m arried to any other
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person, are prepared to pay all a pplicable fees, and who otherwise meet all legal requirements to marry.
47. Because Senate Bill 10 was passed after May 31, it canno t “become effective prior to June 1 of the ne xt 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.” Ill. Const. art. IV, § 10. The General Assem bly did not provide for an earlier effective date and therefore, without action from this Court, the Illinois marriage ban will continue to be enforced until June 1, 2014.
48. The passage of Senate Bill 10 removes a ny remaining doubt that, as a m atter of policy, there is no legitim ate governmental interest served by denying same-sex couples the ability to m arry. By en acting legislation providing for the f reedom to m arry to all Illino isans regardless of their sex or se xual orientation, the Illinois legislature has disavowed all justifications for the co ntinued exclusion of sa me-sex couples from marriage. Plaintiffs will experience ongoing deprivation of th eir constitutional right to m arry until June 1, 2014, and this delay may constitute an absolute bar to marrying for some Plaintiffs, preventing them ever from being married.
Subclass Need for Temporary Restraining Order and Preliminary Injunction 49. Elvie Jordan and Challis Gibbs have been in long-term committed relationship for
20 years. They very much want the world to officially remember and record their relationship as the union of a married couple.
50. Unfortunately, Challis may pass away in th e near future. Unless this Court acts, Elvie and Challis will likely be perm anently denied the benefits, both ta ngible and dignitary, of legal marriage. For exam ple, unless they ar e allowed to lega lly marry, they may face
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discrimination in hospital settings, an estate tax burden and other harm s, including challenges establishing eligibility for social security benefits as a surviving spouse.
51. Ron Dorfman and Ken Ilio have als o been in a long-term committed relationship for 20 years. They also wish to marry and give one another the security and protections that only marriage provides.
52. Unfortunately, Ron may pass away in the near future. Unless this Court acts, Ron and Ken will like ly be perm anently denied the benefits, both tangib le and dignitary, of legal marriage. For example, unless they are allowed to legally marry, they may face discrimination in hospital settings, an estate tax burden and ot her harms, including ch allenges establishing eligibility for social security benefits as a surviving spouse.
53. Because the Illinois Marriage Act prohibits marriages between two individuals of the same sex, Defendant Cook County Clerk is required to deny a m arriage license to two persons of the sam e sex who wish to be le gally married. The Illinois m arriage ban is unconstitutional and Defendant should be imm ediately enjoined fro m enforcing the ban as applied to members of the subclass who have an urgent need to marry prior to June 1, 2014 due to extraordinary circumstances suc h as the po tentially life-threatening illness of one or both parties.
54. There is no adequate rem edy at law. The members of the subclass, including Subclass Representatives, are suffering irreparable harm as described herein. There is no har m to the State of Illinois by gran ting a tem porary restraining or der and preliminary injunction prohibiting enforcement of the challenged statute as applied to the members of the subclass with respect to the issuance of a marriage license. The harm to the members of the subclass is severe.
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The public interest is clearly served by this Cour t acting to order Defendan t immediately to stop enforcing the Illinois marriage ba n as applied to the m embers of the subclass. O nly prompt action by this Court ordering injunctive relief will serve the public interest.
V. CLAIMS FOR RELIEF 55. Because Defendant is prohibited by th e marriage ban f rom issuing marriage licenses to Plaintiffs, Defendant, acting under color of law, has violated, and continues to violate, the rights secured to Plaintiffs by the Fourteenth Amendment to the United States Constitution, including the right to due process of law and the right to equal protection under the law.
COUNT ONE: DENIAL OF DUE PROCESS 56. Plaintiffs reallege and incorporate all p rior allegations made in this Complaint into this Count as if fully restated herein.
57. Plaintiffs state this cause of action against Defendant in his official capacity for purposes of seeking declaratory and injunctive relief.
58. The United States Constitution’s Due Pro cess Clause, U.S. Const. am end. XIV, § 1, provides that no S tate shall “deprive any person of life, lib erty, or propert y without due process of law.”
59. Illinois’ marriage ban precl udes marriage for sam e-sex couples or prevents recognition of their m arriages and thereby violates the due proce ss guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs.
60. The right to m arry the unique person of one’s choice and to di rect the course of one’s life in this intim ate realm without undue government restriction is one of the fundam ental
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liberty interests protected for all by the United States Constitution. The guarantees of liberty, privacy, dignity and autonomy contained in this Clause protect each individual’s rights to family integrity and association, and to make decisions about personal relationships and about whether and when to create a family free of unwarranted government interference.
61. The inability of Defendant to issu e marriage licenses to Plaintiffs because th e Illinois Marriage Act prohibits m arriages between two individuals of the sam e sex has harm ed Plaintiffs.
62. Ongoing enforcement of the m arriage ban in terferes directly and substantially with Plaintiffs’ choice of whom to m arry, interfering with a core, life-altering, and intim ate personal choice.
63. Ongoing enforcement of the m arriage ban in terferes directly and substantially with each Plain tiff’s deeply intim ate, personal a nd private decis ions regarding family life, and precludes them from obtaining full liberty, dignity, integrity, autonomy and security f or themselves and their family.
64. Ongoing enforcement of the m arriage ban thus denies and abridges Plaintiffs’ fundamental right to marry, fundamental right of privacy, and gua rantee of personal liberty, and penalizes Plaintiffs’ self-determination in the most intimate sphere of their lives.
65. There is no justification for the ongoing enforcement of the m arriage ban, especially considering the passage of Senate Bill 10, which removes any remaining doubt that, as a matter of policy, there is no legitim ate governmental interest served by denying P laintiffs the
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ability to marry. Def endant’s actions as a result of the marriage ban violate Plaintiffs’ right of substantive due process under the United States Constitution, Amendment XIV, § 1.
COUNT TWO: DENIAL OF EQUAL PROTECTION 66. Plaintiffs reallege and incorporate all p rior allegations made in this Complaint into this Count as if fully restated herein. 67. Plaintiffs state this cause of action against Defendant in his official capacity for purposes of seeking declaratory and injunctive relief. 68. The United States Constitu tion’s Equal Protection Clause, U.S. Const. a mend. XIV, § 1, provides that no State shall “deny to any person within its jurisdiction the equa l protection of the laws.” 69. Ongoing enforcement of the m arriage ban violates Plaintiffs’ right to equal protection of the laws by discriminating impermissibly on the basis of sexual orientation and sex. 70. The Illinois marriage ban violates the e qual protection guarantee of the United States Constitution, amend. XIV, § 1, both facially and as applied to Plaintiffs. 71. Plaintiffs are similarly situated to different -sex spouses in every relevant respect. Plaintiffs are as worthy of respect, dignity, so cial acceptance, and leg itimacy as different-sex spouses and their children. The emotional, rom antic, and dignitary reasons Plaintiffs seek to marry are similar to those of different-sex couples who choose to marry. 72. Ongoing enforcement of the marriage ban has harmed the Plaintiffs.
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73. The Illinois marriage ban denies Plaintiffs equal dignity and respect and relegates them to a status that is demonstrably inferior. The Illinois marriage ban brands lesbians and gay men as members of less worthy families through a message of government-imposed stigma, and causes private bias and discrimination.
74. The Illinois marriage ban reflects animus, moral disapproval and antipathy toward lesbians and gay men.
75. The Illinois marriage ban targe ts lesbian an d gay Illin oisans as a class f or exclusion from marriage and disc riminates against Plaintiffs ba sed on their sexual orientation and sex both facially and as applied.
76. The Illinois marriage ban also discriminates against Plaintiffs in the enjoyment of equal liberties and equal exercise of fundamental rights.
77. Regardless of the level of scrutiny applied, Def endant’s inability to issue Plaintiffs a m arriage license lack s even a rati onal justification, let alone an important or compelling one, especially considering the pa ssage of Senate Bill 10, which removes any remaining doubt that, as a matter of policy, 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. Defendant’s actions, as re quired by the Illinois m arriage ban, violate Plaintiffs’ right of equal protection under the United States Constitution, Amendment XIV, § 1.
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VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court enter judgment: A. Declaring that this suit is maintainable as a class action pursuant to Federal Rules of Civil Procedure 23(a), 23(b)(2), and 23(c)(5); B. Declaring that the Def endant’s inability to issue a m arriage license to Plaintiffs violates the Due Process and Equal Protection guarantees of the United States Constitution; C. Issuing a temporary restraining order/preliminary injunction for the benefit of the Subclass Representatives and other members of the putative subclass enjoining Defendant and all those acting in concert from enforcing the Illinois marriage ban as applied them; D. Issuing a permanent injunction for the benefit of all Plaintiffs enjoining Defendant and all those acting in concert from enforcing the Illinois marriage ban; E. Awarding Plaintiffs their reasonab le costs, expenses, and attorney fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and F. Granting such other and further relief as this Court shall deem just and proper.
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Respectfully submitted,
/s/ Jordan M. Heinz Emily Nicklin, P.C. Jordan M. Heinz Jeremy Press Lally Gartel KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 Tel: (312) 862-2000 Fax: (312) 862-2200
Camilla B. Taylor Christopher R. Clark LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Midwest Regional Office 105 West Adams, Suite 2600 Chicago, Illinois 60603 Tel: (312) 663-4413 Fax: (312) 663-4307
Attorneys for Plaintiffs
Dated: December 6, 2013

John A. Knight Harvey Grossman Karen Sheley ROGER BALDWIN FOUNDATION OF ACLU, INC. 180 North Michigan Avenue, Suite 2300 Chicago, Illinois 60601 Tel: (312) 201-9740 Fax: (312) 288-5225
Marc O. Beem Zachary J. Freeman M. David Weisman Kay L. Dawson MILLER SHAKMAN & BEEM LLP 180 North LaSalle Street, Suite 3600 Chicago, Illinois 60601 Tel: (312) 263-3700 Fax: (312) 263-3270

22

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CERTIFICATE OF SERVICE I, Jordan M. Heinz, an attorney, certify that on December 6, 2013, I caused the foregoing document to be served via same-day messenger on the following counsel:
Kent Ray Paul Fangman ASSISTANT STATE’S ATTORNEYS 500 Richard J. Daley Center 50 West Washington Street Chicago, IL 60602 Counsel for Defendant David Orr Richard Huszagh Malini Rao Christopher Kim OFFICE OF THE ILLINOIS ATTORNEY GENERAL 100 West Randolph Street Chicago, IL 60601 Counsel for State of Illinois
/s/ Jordan M. Heinz
23

 
 Case: 1:13-cv-08719 Document #: 35 Filed: 12/24/13 Page 1 of 5 PageID #:188

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

BRENDA LEE and LEE EDWARDS;

)

PATRICIA TUCKER and INGRID SWENSON; )

ELVIE JORDAN and CHALLIS GIBBS;

)

RONALD DORFMAN and KENNETH ILIO, )

on behalf of themselves and all others similarly )

situated,

)

)

Plaintiffs,

)

)

v.

)

)

DAVID ORR, in his official capacity as

)

COOK COUNTY CLERK,

)

)

Defendant.

)

)

)

STATE OF ILLINOIS, ex rel. Lisa Madigan,

)

Attorney General of the State of Illinois,

)

)

Interv

enor.

)

)

Case No. 1:13-cv-8719 Hon. Judge Sharon J. Coleman

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Named Plaintiffs Brenda Lee and L ee Edwards, and Patricia Tucker and Ingrid Swenson

(“Plaintiffs”), by the ir attorneys from Kirkland & Ellis LLP, La mbda Legal D efense and

Education Fund, Inc., the Roger Baldwin Foundati on of ACLU, Inc., and Miller, Shakm an, and

Beem LLP, respectfully subm it this Motion for Summary Judgment on a ll counts pursuant to

Federal Rule of Civil P rocedure 56. Plaintiffs concurrently submit herewith a Memorandum in

Support and a Rule 56.1 Statement of Undisputed Material Facts.

1. Plaintiffs are four sa me-sex couples w ho have brought this lawsuit on behalf of

themselves and a class of all same-sex couples in Illinois who apply to marry, but who are barred

from doing so solely because they wish to m arry a person of the same sex. Curr ently-effective

Illinois statutes deny P laintiffs some of their m ost basic freedoms by barring them from civil

Case: 1:13-cv-08719 Document #: 35 Filed: 12/24/13 Page 2 of 5 PageID #:189
marriage. See 750 ILCS 5/201 (authorizing marriages only “between a man and a woman”); 750 ILCS 5/212(a)(5) (prohibiting marriages “between 2 indiv iduals of the sam e sex”); 750 ILCS 5/213.1 (marriages of sam e-sex couples are “cont rary to the public policy of this State”) (collectively, the “m arriage ban”). These stat utes have been am ended or repealed, but the amendments and repeals are not sch eduled to become effective until June 1, 2014. See Illinois General Assembly Senate Bill 10 (am ending 750 ILCS 5/201, and repealing 750 ILCS 5/212(a)(5) and 750 ILCS 5/213.1, wit hout specifying an effective date), and Ill. Const. art. IV , § 10 (providing for an effective date of June 1 th e following year for all legislation enacted after May 31, unless a different effective date is provided by a three-fifths vote).
2. On December 6, 2013, Plaintiffs file d a Class Action Com plaint seeking declaratory and injunctive relief . I n their Co mplaint, Plaintiffs allege that the m arriage ban violates the United States Constitution’s Due Process Clause (Art. XIV § 1) (Class Action Complaint Count 1) and Equal Protection Clause (Art. XIV § 1) (Class Action Complaint Count 2).
3. There are no genuine issues of material fact in this case, and Plaintiffs are entitled to judgment as a matter of law on all counts.
4. Plaintiffs’ claim under the Equal Protec tion Clause shoul d be subject to heightened scrutiny. Plaintiffs are similarly situated to non-ga y couples with respect to the purposes of m arriage. The m arriage ban discri minates on the basis of sexual orientation and therefore warrants heightened scrutiny. Nevert heless, because the Illino is Legislature has repealed the marriage ban, and thus disavowed any prior purported governmental justification for excluding lesbian and gay couples from marriage, the level of scrutiny is irrelevant.
2

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5. Plaintiffs’ claim under the Due Process Cl ause should be subj ect to heightened scrutiny because the marriage ban denies Plaintiffs their fundamental right to marry the person of their choice. Nevertheless, because the Illinois Legislature has repealed the marriage ban, and thus disavowed any prior purported governm ental justification for ex cluding lesbian and gay couples from marriage, the level of scrutiny is irrelevant.
6. The marriage ban fails any level of constitutional review, because the Illinois Legislature itself has determ ined that there is no legitim ate governmental interest served by denying same-sex couples the ability to marry.
WHEREFORE, for the reason s set forth above and in th e Plaintiffs’ accompanying Memorandum, Plaintiffs respectfully request th at this Cour t grant the ir Motion f or Summary Judgment on all counts and grant the following relief:
(a) entry of a declaratory judgm ent that the Defendant’s inability to issue a marriage license to Plaintiffs and th e class violates the Du e Process and Equal Protection guarantees of the United States Constitution;
(b) entry of a perm anent injunction for the benefit of all Plaintiffs and the class enjoining Defenda nt and all th ose acting in concert from enforcing the Illinois marriage ban;
enter such other and further relief as deemed appropriate by this Court.
3

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Respectfully submitted,
/s/ Jordan M. Heinz Jordan M. Heinz Jeremy Press Lally Gartel KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 Tel: (312) 862-2000 Fax: (312) 862-2200
Camilla B. Taylor Christopher R. Clark LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Midwest Regional Office 105 West Adams, Suite 2600 Chicago, Illinois 60603 Tel: (312) 663-4413 Fax: (312) 663-4307
Attorneys for Plaintiffs
Dated: December 24, 2013

John A. Knight Harvey Grossman Karen Sheley ROGER BALDWIN FOUNDATION OF ACLU, INC. 180 North Michigan Avenue, Suite 2300 Chicago, Illinois 60601 Tel: (312) 201-9740 Fax: (312) 288-5225
Marc O. Beem (Atty No. 00155284) Zachary J. Freeman (Atty No. 06281413) M. David Weisman (Atty No. 6230714) Kay L. Dawson (Atty No. 6312631)\ MILLER SHAKMAN & BEEM LLP 180 North LaSalle Street, Suite 3600 Chicago, Illinois 60601 Tel: (312) 263-3700 Fax: (312) 263-3270

4

Case: 1:13-cv-08719 Document #: 35 Filed: 12/24/13 Page 5 of 5 PageID #:192
CERTIFICATE OF SERVICE I, Jordan M. Heinz, an attorn ey, certify that on December 24, 2013, I caused the foregoing document to be served via ECF, email, and U.S. Mail on the following counsel:
Kent Ray Paul Fangman ASSISTANT STATE’S ATTORNEYS 500 Richard J. Daley Center 50 West Washington Street Chicago, IL 60602 Counsel for Defendant David Orr Richard Huszagh Malini Rao Christopher Kim OFFICE OF THE ILLINOIS ATTORNEY GENERAL 100 West Randolph Street Chicago, IL 60601 Counsel for Intervenor State of Illinois
/s/ Jordan M. Heinz
5

 
 Case: 1:13-cv-08719 Document #: 36 Filed: 12/24/13 Page 1 of 22 PageID #:193

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

BRENDA LEE and LEE EDWARDS;

)

PATRICIA TUCKER and INGRID SWENSON; )

ELVIE JORDAN and CHALLIS GIBBS;

)

RONALD DORFMAN and KENNETH ILIO, )

on behalf of themselves and all others similarly )

situated,

)

)

Plaintiffs,

)

)

v.

)

)

DAVID ORR, in his official capacity as

)

COOK COUNTY CLERK,

)

)

Defendant.

)

)

)

STATE OF ILLINOIS, ex rel. Lisa Madigan,

)

Attorney General of the State of Illinois,

)

)

Interv

enor.

)

)

Case No. 1:13-cv-8719 Hon. Judge Sharon J. Coleman

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Camilla B. Taylor Christopher R. Clark LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Midwest Regional Office 105 West Adams, Suite 2600 Chicago, Illinois 60603

John A. Knight Harvey Grossman Karen Sheley ROGER BALDWIN FOUNDATION OF ACLU, INC. 180 North Michigan Avenue, Suite 2300 Chicago, Illinois 60601

Jordan M. Heinz Jeremy Press Lally Gartel KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654

Marc O. Beem Zachary J. Freeman M. David Weisman Kay L. Dawson MILLER SHAKMAN & BEEM LLP 180 North LaSalle Street, Suite 3600 Chicago, Illinois 60601

Case: 1:13-cv-08719 Document #: 36 Filed: 12/24/13 Page 2 of 22 PageID #:194
TABLE OF CONTENTS FACTUAL BACKGROUND ....................................................................................................... 1 I. ILLINOIS LAW FRUSTRATES PLAINTIFFS’ AND THE CLASS’
DESIRE TO MARRY IN THEIR HOME STATE OF ILLINOIS.............................. 1 II. BRENDA LEE AND LEE EDWARDS........................................................................... 2 III. PATRICIA TUCKER AND INGRID SWENSON ........................................................ 3 IV. history of illinois’ marriage ban ...................................................................................... 4 PROCEDURAL HISTORY ......................................................................................................... 4 ARGUMENT................................................................................................................................. 6 I. ILLINOIS’ MARRIAGE BAN DENIES PLAINTIFFS EQUAL
PROTECTION OF THE LAW. ...................................................................................... 7 A. Plaintiffs Are Similarly Situated To Non-Gay Couples With Respect To
The Purposes Of Marriage. ..................................................................................... 8 B. The Marriage Ban Discriminates On The Basis Of Sexual Orientation. ................ 8 C. Whether Classifications Based On Sexual Orientation Warrant Heightened
Scrutiny Is Irrelevant Because The Illinois Legislature Has Repealed The Marriage Ban. ......................................................................................................... 9 II. ILLINOIS’ MARRIAGE BAN INFRINGES PLAINTIFFS’ AND THE CLASS’ FUNDAMENTAL RIGHT TO MARRY. ..................................................... 12 CONCLUSION ........................................................................................................................... 15
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TABLE OF AUTHORITIES
Cases
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................................................................... 7
Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, 130 S.Ct. 2971 (2010) ................................................................................................................ 9
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .................................................................................................................... 7
Golinski v. Office of Personnel Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ...................................................................................... 10
Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003) ....................................................................................... 12, 13, 15
Gray v. Orr, No. 13 C 8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013)............................................ 4, 10, 11, 13
Griego, et al. v. Oliver, No. 34,306, 2013 WL 6670704 (N.M. Dec. 19, 2013) ................................................... 8, 10, 11
Griswold v. Connecticut, 381 U.S. 479 (1965) .................................................................................................................... 8
In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ...................................................................................... 10
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ........................................................................................ 10, 12, 13, 15
Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008)................................................................................................. 10, 12
Kitchen, et al. v. Herbert, et al., No. 13-cv-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013).............................................. 11, 15
Lawrence v. Texas, 539 U.S. 558 (2003) .............................................................................................................. 9, 14
Loving v. Virginia, 388 U.S. 1 (1967) ...................................................................................................... 1, 12, 13, 14
ML.B. v. S.L.J., 519 U.S. 102 (1996) .................................................................................................................... 9
ii

Case: 1:13-cv-08719 Document #: 36 Filed: 12/24/13 Page 4 of 22 PageID #:196
Moore v. City of East Cleveland, 431 U.S. 494 (1977) .................................................................................................................. 12
Obergefell v. Wymyslo, No. 13-cv-501, 2013 WL 6726688 (S.D. Ohio Dec. 23, 2013) ................................................ 11
Pederson v. Office of Personnel Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012) ....................................................................................... 10
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .................................................................... 10, 11, 14, 15
Planned Parenthood v. Casey, 505 U.S. 833 (1992) .................................................................................................................. 14
Reno v. Flores, 507 U.S., 292 (1993) ................................................................................................................. 12
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .................................................................................................................. 13
Romer v. Evans, 517 U.S. 620 (1996) .................................................................................................................. 10
Turner v. Safley, 482 U.S. 78 (1987) .................................................................................................................... 13
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).......................................................................................... 8, 10, 11
Varnum v. Brien, No. 5965, 2007 WL 2468667 (Iowa Dist. Ct. Aug. 30, 2007) .................................................. 15
Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................................................................................. 12
Webster v. Reproductive Health Servs., 492 U.S. 490 (1989) .................................................................................................................. 12
Windsor v. United States, 133 S. Ct. 2675 (2013) ................................................................................................ 6, 7, 10, 13
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) ...................................................................................................... 10
Zablocki v. Redhail, 434 U.S. 374 (1978) ...................................................................................................... 12, 13, 15
iii

Case: 1:13-cv-08719 Document #: 36 Filed: 12/24/13 Page 5 of 22 PageID #:197 Statutes 29 U.S.C. § 2614(c)(1).................................................................................................................... 7 5 U.S.C. § 8901............................................................................................................................... 7 750 ILCS 5/201........................................................................................................................... 1, 2 750 ILCS 5/212(a)(5)...................................................................................................................... 2 750 ILCS 5/213.1............................................................................................................................ 2 8 U.S.C. § 1186a ............................................................................................................................. 7 Other Authorities Ill. Const. art. IV, § 10 .................................................................................................................... 2 Rules FED. R. CIV. P. 56(c) ....................................................................................................................... 7
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“Marriage is one of the ‘basic civil rights of man….’” Loving v. Virginia, 388 U.S. 1, 12 (1967) (quoting Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535, 541 (1942)). Plaintiffs Brenda Lee and Lee Edwards, and Patricia Tuck er and Ingrid Swenson, bring this class action lawsuit on behalf of all sam e-sex couples in Illinois who apply to marry (collectively, “Plaintiffs”), but who are barred from doing so solely because they wish to marry a person of the same sex. Illinois law currently excludes lesbia ns and gay men from marriage, thereby branding their cherished relationships as second class and less worthy of state recognition than those of different-sex couples. Although the Illinois legislature enacted a law on November 20, 2013, that permits same-sex couples the freedom to m arry, this law will not go into effect until June 1, 2014. Accordingly, even though different-sex c ouples may marry today for any reason ranging from the practical (end-of-year tax filing status) to the profound (a desire to commit to each other in a ceremony involving an ailing family member who may pass away soon), the State continues to ban P laintiffs and other sam e-sex couples from marriage for severa l months. Plaintiffs’ continued exclusion from marriage harms these couples and their children in both tangible and dignitary ways in violation of the Constitution. No legitimate governmental interest supports the continued exclusion of sam e-sex couples from marriage, especially now that the legislature, by enacting marriage legislation for same-sex couples, has disavowed all justifications for excluding these families. Plaintif fs’ seek summary judgm ent on their claim s that their exclusion from marriage violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
FACTUAL BACKGROUND I. ILLINOIS LAW FRUSTRATES PLAINTIFFS’ AND THE CLASS’ DESIRE TO
MARRY IN THEIR HOME STATE OF ILLINOIS. Illinois law currently excludes lesbian and gay couples from marriage. The Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/201 (the “Marri age Act”) authorizes

Case: 1:13-cv-08719 Document #: 36 Filed: 12/24/13 Page 7 of 22 PageID #:199
marriages “between a m an and a wom an,” 750 ILCS 5/201, expressly prohibits m arriage “between 2 individuals of the sam e sex,” 750 IL CS 5/212(a)(5), and states that marriages of same-sex couples are “contrary to the public policy of this State,” 750 ILCS 5/213.1. The provisions of the Marriage Act that individually and collectively exclude lesbian and gay couples from marriage are referred to herein as the “marriage ban.”
On November 5, 2013, both houses of the Illin ois General Assembly passed Senate Bill 10 (“SB 10 ”), which amends the I llinois Marriage Act to allow s ame-sex couples to m arry in Illinois. Because SB 10 was passed after May 31, it cannot “become effective prior to June 1 of the next calendar year unless the General Assem bly by the vote of three-fifths of the m embers elected to each house provides for an earlier effective date.” I ll. Const. art. IV, § 10. The General Assembly did not provide for an earlier effective date and therefore, without action from this Court, the Illinois marriage ban will continue to be enforced until June 1, 2014. II. BRENDA LEE AND LEE EDWARDS
Brenda Lee and Lee Edwards reside in Chi cago, Illinois and have been in a long term , committed relationship for over a d ecade. (Pls.’ Stmt. of Undisputed Materia l Facts (“SOF”) ¶ 1.) Brenda and Lee love each other and wish to m arry as soon as possible both to provide security for one another, but al so because m arriage has alw ays been and rem ains important to them as a way to express their commitment and love for one another. (Id. at ¶ 3.) They entered a civil union on June 2, 2011. (Id. at ¶ 1.)
Brenda and Lee have known each other for many years, but their relationship blossomed in 2003 when they were both m embers of the Same-Gender Loving Ministry in the Chicago Trinity United Church of Christ. (Id. at ¶ 2.) Over time, since Brenda lived nearby each other, they came to see each other alm ost every day to talk. After m any dates and picnics, the two began to spend m uch of their time with one another. (Id.) W hen Brenda decided to m ove to
2

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Virginia to attend seminary, she decided to propose to Lee first, so that they could spend the rest of their lives together. (Id.) Lee said yes, and they moved to Virginia and, three years later, back to Chicago together. (Id.)
Brenda and Lee want to be able to say that they are legally married and that they are each other’s spouses. (Id. at ¶ 3.) Neither of them enjoy having to explain what a civil union is, nor having to describe or explain the nature of their commitment to one another. Their desire to marry is rooted in their need to live their lives together w ithout the numerous bureaucratic and social hurdles that accompany their inability to use the word m arriage to describe their union. (Id.) For all these reasons, Brenda and Lee wish to marry as soon as possible. III. PATRICIA TUCKER AND INGRID SWENSON
Patricia (“Pat”) Tucker and Ingrid Swenson reside in Chicago, Illinois and have also been in a loving and committed relationship for more than a decade. (Id. at ¶ 4.) After being friends and coworkers for years, Pat and Ingrid’s romantic relationship began in 2003. (Id.) In 2006, Pat and Ingrid had a cerem ony to affirm their love and commitment for one another. They also have a three and one-half year old daughter nam ed Amari, who is the center of their life together. (Id.) Pat and Ingrid love each other and their daughter deeply, and are excited to spend the rest of their lives together as a family. (Id.)
Pat and Ingrid eagerly want to marry, and would like the protection and stability that marriage would bring to their fam ily. (Id. at ¶ 5.) They have had to plan ahead and be very careful about every possible thing, including emergency medical decision-making for one another, inheritance for each other and Am ari, and potential challenges to Pat’s parental rights , especially when Am ari and Pat travel togeth er. (Id.) They have to bring their paperwork everywhere just to prove that they are a committed and loving family. (Id.)
3

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Marriage would permit Pat and Ingrid to gain public recognition of their relationship and family, and allow them to be f reed from the bur den of ha ving to explain the nature of their relationship — a burden married couples do not face. (Id. at ¶ 6). For all these reasons, Pat and Ingrid wish to marry. IV. HISTORY OF ILLINOIS’ MARRIAGE BAN
The Illinois General Assembly passed the marriage ban in 1996, during the pendency of a Hawaii state court case challenging the constitutionality of that state’s ban on marriage for samesex couples. The m arriage ban’s legislative proponents made clear that anim us motivated passage of the law and that they relied on cons titutionally impermissible justifications for the ban, including a desire to brand sam e-sex couples’ relationships as immoral. F or example, legislative proponents of the ba n characterized it as responsive to th e question of “whose morality are we going to im pose on the public” (Senate D ebate of S.B. 1773, 89th General Assembly, Mar. 28, 1996, at 97, 101), compared marriage for gay people to incest and polygamy (id. at 97), and sought support of the ban in order to reject “affirm[ing] the [gay] lifestyle.” Id. at 104-05 (remarks of Sen. Fitzgerald). Oppone nts of the ban immedi ately recognized its discriminatory purpose, stating that “by singling out gay [ ] a nd lesbian m arriages,” the bill would “fuel[] the fla mes of hatred, ignorance and intolerance in this state.” (House Debate of S.B. 1773, 89th General Assem bly, Apr. 25, 1996, at 54-55 (remarks of Rep. Feigenholtz)); see also id. at 56-58 (remarks of Rep. Ronen) (calling the legislation a “Bill of hatred”); id. at 53-54 (remarks of Rep. Currie ) (bill sends m essage that “it’s okay to bash peop le [whose] preferences and proclivities are different [from] the majority”). (See SOF ¶¶ 7-8.)
PROCEDURAL HISTORY This case follows closely a similar case in the Northern District of Illinois, Gray & Ewert v. Orr, Case No. 1:13-cv-8449. In Gray, two women who wished to marry filed a complaint and
4

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motion for tem porary restraining order, seeking temporary and perm anent relief from Illinois’ marriage ban because o ne of the wom en was terminally ill and likely would not live to see th e June 1, 2014 effective date of th e repeal of the m arriage ban. ( Gray, Dkt. Nos. 1, 6.) On November 25, Judge Thom as Durkin granted th e women’s motion for a temporary restraining order, requiring Cook County Clerk David Orr to issue them a marriage license. (Gray, Dkt. No. 21.) The plaintiffs in Gray married on November 26, 2013.
On December 6, 2013, the Plaintiffs in this case filed a class action complaint seeking (1) permanent relief from the marriage ban on behalf of 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; and (2) prelim inary relief on behalf of a subclass com posed of class mem bers who have a need to marry prior to June 1, 2014 due to a life-threatening illness of one or both parties. (Dkt. No. 1.) On the sam e date, the Subclass Representatives filed a motion for temporary restraining order and prelim inary injunction on be half of themselves and the subclass (Dkt. No. 6), and the State of Illinois m oved to interven e (Dkt. No. 15). The St ate and D efendant Orr asserts that 1 of Plaintiffs’ complaint that the marriage ban violates the equal protection clause, and also supported Plaintiffs’ motion for temporary restraining order. After hearing argument on December 9, the Court granted the Subclass Representatives’ motion as to themselves (Dkt. No. 23), and on December 10, the Court gran ted the m otion on behalf of the subclass, contingen t upon the parties’ agreem ent on the proper delinea tion of the subclass and the proper procedures for implementing the relief granted (Dkt. No. 24). On December 13, Pl aintiffs filed a motion to certify the plaintiff class and subclass (Dkt. No. 28), which was supported by Defendant Orr and the State. O n December 16, the Cou rt heard further argument on the m otion, and certified both the class and the subclass. (Dkt. N o. 31.) On the sam e day, the Court granted a prelim inary
5

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injunction on behalf of the subclass, im plementing procedures for members of the subclass to be married before June 1, 2014. (Dkt. No. 32.) Pl aintiffs now move for summary judgment on the unconstitutionality of the Illinois marriage ban as applied to the full class.
ARGUMENT The Supreme Court recently obs erved in Windsor v. United States , 133 S. Ct. 2675 (2013), that when government relegates same-sex couples’ relationships to a “second-tier” status, the government “demeans the couple,” “hu miliates…children being raised b y same-sex couples,’” deprives these families of equal dignity, and “degrade[s]” them, in addition to causing them countless tangib le harms, all in violatio n of “basic due process and equal protection principles.” Id. at 2693-95. The Illinois General Assembly has embraced a new public policy by passing a law granting lesbian a nd gay couples the freedom to marry, but the new law does not go into effect until June 2014. Th ere is, therefore, no conceivabl e governmental interest served by continuing to exclu de Plaintiffs and the cl ass from marriage. Th e General Assem bly’s disavowal of the old public policy undermines the claim that there is a legitimate justification for continuing to give the m arriage ban legal effect, pa rticularly in light of the liberty interests at stake here. The m arriage ban d eprives Plaintiffs and th eir children of equal dignity and autonomy in the m ost intimate sphere of their lives and brands them as inferior to other Illinois families, inviting ongoing discrimination in numerous daily interactions in hospital s ettings, in workplaces, and elsewhere. Plaintiffs ar e harmed by being p revented from marrying immediately because th ey are den ied the sym bolic imprimatur and dignity that the lab el “marriage” uniquely confers. It is the only term in our society that, wit hout further explanation, conveys that a relationship is de ep and abiding, and is the only term that comm ands instant respect for a relationship. Plaintiffs and their children are also harmed by the denial of numerous federal benefits to m arried same-sex couples th at were availed in the wake of the June 2013
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Windsor decision.1 The Illinois m arriage ban violates Pl aintiffs’ and the class’ right to due process and equal protection under the law, as guaranteed by the United States Constitu tion, and the ban should be struck down.
Summary judgment shall be rende red when the pleading s and affidavits that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986); F ED. R. CIV. P. 56(c). Here, there are no material facts in dispute and application of the controlling law to the facts shows that summary judgment should be granted to Plaintiffs. I. ILLINOIS’ MARRIAGE BAN DENIES PLAINTIFFS EQUAL PROTECTION OF
THE LAW. The Equal Protection Clause of the Fourteenth Amendment ensures that similarly situated persons are not treated diffe rently because of their membership in a class. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (“The Equal Protection Clause…is essentially a direction that all persons sim ilarly situated should be treated a like.”). If sim ilarly situated persons are treated differently, the court determines if the classification that singles them out for differential treatment is “suspect” or “quasi-suspect.” Id. at 440-41. Finally, the court applies the appropriate level of scrutiny, depending on the nature of the classification. Id. A classification that singles out a suspect class is reviewed under strict scrutiny, one that singles out a quasi-suspect class is reviewed under heightened sc rutiny, and a classifi cation that does not single out a suspect or quasi-suspect cla ss is r eviewed for a ration al basis. Id at 440-41. As
1 For example, couples who are married are entitled to family medical leave to care for a sick spouse under the Family and Medical Leave Act, and also receive favorable estate tax treatment after the death of a spouse. See 29 U.S.C. § 2614(c)(1) (family medical leave); Windsor, 133 S.Ct. 2675 (unconstitutional to deny federal estate tax exemption to married same-sex couple). Married same-sex couples also ar e granted spousal health insurance for federal employees (5 U.S.C. § 8901), and the ability to sponsor a spo use for citizen ship for immigration purposes (8 U.S.C. § 1186a), among other federal benefits. Couples in civil unions who are not married are not entitled to these federal benefits, among many others.
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described below, regardless of the level of scrutiny, the Illino is marriage ban imperm issibly discriminates on the basis of sexual orientation against Plaintiffs.
A. Plaintiffs Are Similarly Situated To Non-Gay Couples With Respect To The Purposes Of Marriage.
Gay and lesbian couples are sim ilarly situated to heterosexual couples in every respect that is relevant to the purposes and attributes of marriage. See Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a wa y of life, not causes; a harm ony in living, not political faiths; a bilateral loyalty, not comm ercial or social projects.”); Turner v. Safley , 482 U.S. 78, 95-96 (1987) (even where prisoner had no right to conjugal visits and therefore no possibility of consumm ating marriage or having children, “[m]any important attributes of marriage remain”). Here, Plaintiffs “are in committed and loving relationships…just like heterosexual couples.” Varnum v. Brien, 763 N.W.2d 862, 883-84 (Iowa 2009). “Some of these Plain tiffs are raising families, similar to many opposite-gender couples who also seek to be m arried. They assert that recognition of their status as married couples will provide them with a stable fram ework within wh ich to ca re for each other and ra ise families, similar to opposite-gender couples who want to m arry and raise their families.” Griego, et al. v. Oliver, No. 34,306, 2013 W L 6670704, at *9 (N.M. Dec. 19, 2013). The Na med Plaintiff couples have each been committed couples for the pa st ten years, and wish to memorialize their relationship as a marriage in their home state of Illinois. See SOF ¶¶ 3, 5.
B. The Marriage Ban Discriminates On The Basis Of Sexual Orientation. The act of falling in love with a person of the same sex, and the decision to m arry and build a life with that person, ar e expressions of sexual orientation. As a m atter of law, courts have held that laws targeting conduct closely associated with being ga y or lesbian are laws
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classifying persons based on their sexual orientation. See Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, 130 S. Ct. 2971, 2990 (2010) (“When homosexual conduct is made criminal by the law of the State, that declaration in and o f itself is an invita tion to subject homosexual persons to discrimination.”) (quoting Lawrence v. Texas, 539 U.S. 558, 575 (2003)) (emphasis added).
As Justice O’Connor explained in Lawrence (concurring in the judgm ent on equal protection grounds), “[w]hile it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual,” so that “[t]hose harm ed by this law are people who have a sam e-sex sexual orientation.” Lawrence, 539 U.S. at 581, 583. And more recen tly, the Sup reme Court reiterate d that a prohib ition on sam e-sex intimate conduct is no different from discrimination against gay people, re fusing “to distinguish between status and conduct in this context.” Martinez, 130 S. Ct. at 2990. The ex clusion is categorical, preventing all lesbian and gay couples from marrying c onsistent with their sexua l orientation, until June 1, 2014, while not prev enting heterosexual couples from marrying. Where, as here, the statute’s discrim inatory effect is m ore than “merely disproportionate in impact,” but rather affects everyone in a class and “does not reach anyone outside th at class,” a showing of discriminatory intent is not required. See ML.B. v. S.L.J., 519 U.S. 102, 126-28 (1996).
C. Whether Classifications Based On Sexual Orientation Warrant Heightened Scrutiny Is Irrelevant Because The Illinois Legislature Has Repealed The Marriage Ban.
This Court need not determ ine the level of scrutiny appropriate for classifications based on sexual orientation because, in passing SB 10, the Illinois General Assem bly has disavowed any prior purported governm ental justification for excluding lesbian and gay couples from
9

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marriage. Plaintiffs argue heightened scrutiny should apply to the Illinois marriage ban,2 but the
ban lacks any governmental justification whatsoever based on the passage of SB 10.
As this Court already has recognized, “the new amendment contained in Senate Bill 10
legalizing same-sex marriage is an express repudiation of the stat e’s earlier p osition and
undermines the traditionally invoked justificati ons for the prohibition on sam e-sex marriage.”
(12/10/2013 Order, Dkt. No. 25, at 5.) Likewise, in Gray v. Orr, Judge Durkin recognized the
effect of the legislative action on the scrutiny analysis, finding that “by passing Senate Bill 10,
the General Assembly has officially recognized the value of all the benefits that official marriage
status imparts and determ ined that these are bene fits same-sex couples ar e entitled to enjoy.”
Gray v. Orr , No. 13 C 8449, 2013 WL 6355918, at *4 (N.D. Ill. Dec. 5, 2013). “Any policy
2 In eac h case in which the Supreme Court considered challenges to classifications that discriminate based on sexual orientation, it was unnecessary to decide the appropriate level of scrutiny to apply under conventional equal protection analysis, since those laws were motivated by animus and therefore failed any standard of review. Any law intended to demean lesbians and gay men and to impose a broad disability for the purpose of disadvantaging them as a class “confounds [the] normal process of judicial review.” Romer v. Evans, 517 U.S. 620, 633-34 (1996) (noting such laws “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected”). Here, the Illinois Marriage Ban bears striking similarity to the “design, purpose, and effect of the [federal Defense of Marriage Act],” recently ruled unconstitutional in United States v. Wi ndsor, 133 S .Ct. at 2675, 2689. Subjecting the Illinois law to the same “careful consideration” required in Windsor, the law is similarly fatally flawed: its “principal purpose” was “to impose inequality.” Id. at 2694.
In the extremely unlikely event a l egitimate independent governmental interest could ever be conceived to justify a classification that al so has the primary effect of disadvanta ging lesbian and gay men as a class, Plaintiffs contend it should be subjected to review under heightened scrutiny. See Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012) (“We further conclude that the class is quasi-s uspect…” and a pply “intermediate scrutiny.”); Pederson v. Office of Personnel Mgmt., 881 F. Su pp. 2d 294, 333 (D. Conn. 2012) (holding that “statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny”); Golinski v. Office of Personnel Mgmt., 824 F. Supp. 2d 968, 989-90 (N.D. Cal. 2012) (determining that “the appropriate level of scrutiny to use when reviewing statutory classifications based on sexual orientation is heightened scrutiny”); Perry, 704 F. Supp. 2d at 997 (N.D. Cal. 2010) (ruling that “strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation”); In re Ba las, 449 B.R. 567, 575 (Bankr. C.D. Cal. 2011) (finding “heightened scrutiny should be the standard in this case”); Griego, 2013 WL 6670704, at *18 (N.M. Dec. 19, 2013) (“Therefore, we conclude that intermediate scrutiny must be app lied in th is case because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination.”); Varnum, 763 N.W.2d at 895 (“[W]e hold that legislative classifications based on sexual orientation must be examined under a h eightened level of scru tiny under the Iowa Constitution.”); In re M arriage Cases, 183 P.3d at 444 (“[S]trict scrutiny standard therefore is applicable to statutes that impose differential treatment on the basis of sexual orientation.”); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 482 (Conn. 2008) (explaining that “to the extent that gay persons possess some political power, it does not disqualify them from recognition as a quasi-suspect class under the state constitution…”).
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justification for the current Il linois law has been undercut and since rejected by the Illinois General Assembly with its p assage of Senate Bill 10, wh ich now seeks to pro tect same-sex couples.” Id. at *5. Judge Durkin also found there was “no legislative history that the parties have pointed to, or that the Court could find, that provides e ither a legitim ate governmental justification or a rational basis for the General Assembly’s decision to delay the effective date of Senate Bill 10.” Id.
Because the legislatu re itself has determ ined that there is no legitimate govern mental interest served by denying sam e-sex couples the ability to marry, th is Court, like others before, should find that the marriage ban violates Plaintiffs’ right to equal protection under the law. See Kitchen, et al. v. Herbert, et al. , No. 13-cv-217, 2013 WL 6697874, at *28 (D. Utah Dec. 20, 2013) (“Because Am endment 3 fails even rational basis review, the cour t finds that Utah’s prohibition on sam e-sex marriage violates the Plaintiffs’ right to equal protection under the law.”); Perry v. Schwarzenegger , 704 F. Supp. 2d 921, 991 (N.D. Cal. 2010) (“Pro position 8 cannot withstand any level of scrutiny under the E qual Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”); Obergefell v. Wymyslo, No. 13-cv-501, 2013 WL 6726688, at *20-21 (S.D. Ohio Dec. 23, 2013) (“Even if it were possible to hypothesize regarding a rational connecti on between Ohio’s m arriage recognition bans and som e legitimate governmental interest, no hypothetic al justification can overcome the clear primary purpose and practical effect of the marriage bans…to disparage and demean the dignity of sam e-sex couples in the eyes of the State and the wider community.”); Griego, 2013 W L 6670704, at *22 (finding that state m arriage ban vi olated plaintiffs’ equal protection under the law); Varnum, 763 N.W.2d at 906 (sam e); Kerrigan v. Comm’r of Pub.
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Health, 957 A.2d 407, 482 (Conn. 2008) (sam e); In re Marriage Cases, 183 P.3d 384, 452 (Cal. 2008) (same); Goodridge v. Dep’t of Public Health, 798 N.E.2d 941, 958 (Mass. 2003) (same). II. ILLINOIS’ MARRIAGE BAN INFRINGES PLAINTIFFS’ AND THE CLASS’
FUNDAMENTAL RIGHT TO MARRY. “The freedom to m arry has long been rec ognized as one of the vital personal rights essential to the orderly pursuit of happiness by free m en.” Loving, 388 U.S. at 12 (citation omitted); see also Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (“Since our past decisions make clear that the right to marry is of fundam ental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe th at ‘critical examination of the state interests advanced in support of the classification is required.”). Under the Due Process Clause of the F ourteenth Amendment, legislation that infringes a fundamental right is subject to strict scrutiny. See Washington v. Glucksberg , 521 U.S. 702, 721 (1997) (“[T]he Fourteenth Amendment ‘forbids the governm ent to infringe…’fundamental’ liberty interests at all, no matter what process is provided, unless the in fringement is narrowly tailored to serve a compelling state inte rest.’”) (quoting Reno v. Flores , 507 U.S., 292, 302 (1993)) (em phasis in original). Thus, the Court must first determine whether the right infringed is “fundamental,” and then must closely scrutinize the law to determine whether it has been narrowly tailored to serve a compelling government interest. Id. Marriage has long been recognized as a funda mental right protected under federal due process guarantees. See Webster v. Reproductive Health Servs. , 492 U.S. 490, 564-65 (1989) (“freedom of personal choice in m atters of m arriage and family life is on e of the libe rties protected by the Due Process Clause of the Fourteenth Amendment”) (citing Loving, 388 U.S. at 12); Moore v. City of East Clevela nd, 431 U.S. 494, 499 (1977) (same). The U.S. Suprem e Court and the Illinois legislature have recognized that the right to marry is not lim ited to
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different-sex couples. In ruling that the federal governm ent must provide m arital benefits to married same-sex couples, and th at married lesbian and gay persons and their children are entitled to e qual dignity as well as equal tre atment by their f ederal government, the Windsor Court acknowledged that m arriage is not inheren tly defined by the sex or sexual orientation of the couples. In states granting the freedom to marry to sam e-sex couples, m arriage permits same-sex couples “to define them selves by their commitment to each o ther” and to “live with pride in themselves and their union and in a status of equality with all other married persons.” Windsor, 133 S. Ct. at 2689. The right to m ake personal decisions central to marriage would be meaningless if governm ent dictated one’s marriag e partner; cou rts thus have p laced special emphasis on protecting one’s free choice of spouse. See, e.g., In re Marriage Cases, 183 P.3d at 420 (“the right to m arry represents the right of an individual to establish a legally recognized family with the person of one’s choice”); Goodridge, 798 N.E.2d at 958 (“right to marry m eans little if it does not include the right to marry the person of one’s choice”). Here, the passage of SB 10 is Illinois’s public recognition that the right to marry extends equally to those who wish to marry a person of the s ame sex. See Gray, 2013 W L 6355918, at *5 (“Further infor ming the analysis is the fact that on November 5, 2013, the Illinois General Assembly recognized marriage (and the r ights and privilege s that com e with it) as a fundamental right to which sam e-sex couples are entitled.”) (emphasis added).3
3 Even absent marriage legislation in Illinois, U.S. Supreme Court precede nt precludes defining the fundamental right to marry in a way th at excludes same-sex couples from exercising it. Importantly, the scope of a fundamental right is d efined by attributes of the right itself, an d not by th e identity of the people who seek to exercise or who have been excluded from exercising it in the past. Under federal law, the description of the fundamental right to marry is no t qualified by identity. In Loving, the Supreme Court did not describe a right to “interracial marriage.” Nor did the C ourt describe a right to “prisoner marriage” in Turner v. Safley, 482 U.S. 78 (1987), or a r ight to “deadbeat parent m arriage” in Zablocki v. Redhai l, 434 U.S. 374 (1978). Th us, the Illinois marriage ban is, like the bans in these prior cases that targeted certain classes of people for exclusion from marriage, an infringement on the fundamental right to marry held by all. See also Loving, 388 U.S. at 12 (“Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”); Roberts v. U.S. Jaycees , 468 U.S. 609, 620 (1984) (“[T]he Constitution undoubtedly
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Lawrence held that the right of c onsenting adults (including same-sex couples) to engage in private, sexual intimacy is prote cted by the Fourteenth Amendment’s protection of liberty, notwithstanding the historical existence of sodomy laws and their u se against gay people. For the same reasons, the fundam ental right to m arry is “deeply rooted in this Nation’s history and tradition” for purposes of constitu tional protection even though same-sex coup les have not historically been allowed to exercise that right. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” Lawrence, 539 U.S. at 572 (citation omitted). While courts use h istory and tradition to iden tify the interests that due process protects, they do not carry f orward historical limitations, either traditional or arising by operation of prior law, on which Americans m ay exercise a right once that right is recognized as one that du e process p rotects. This cri tical distinction — that history guides the what of due process rights, but not the who of which individuals have them — is central to due process jurisprudence. See Planned Parenthood v. Casey , 505 U.S. 833, 847-48 (1992) (“[I]nterracial marriage was illega l in most State s in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protecte d against state in terference by the substantive component of the Due Process Clause in Loving . . . .”); Lawrence, 539 U.S. at 577-78 (“[N]either history nor tradition cou ld save a law prohibiting miscegenation from constitutional attack.”) (citation omitted).
The Illinois m arriage ban infringes upon Plai ntiffs’ fundamental right to marry. Plaintiffs’ relationships e mbody the most celebrated and essential hallm arks of r elationships
imposes constraints on the State’s power to control the selection of one’s spouse . . . .”); see also See Perry, 704 F. Supp. 2d at 993 (“ same-sex couples are situated identically to opposite-sex couples in term s of their ability to perform the rights and obligations of marriage under California law…. Plaintiffs do not seek recognition of a new… ‘right to same-sex marriage’ … Rather, plaintiffs ask California to rec ognize their relationships for what they are: marriages.”).
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sanctioned with marriage. The choice of whom to marry is the quintessential type of personal

decision protected by th e Due Process Clause of the U.S. Constitu tion, and courts h ave struck

down state laws pro hibiting the marriage of sa me-sex couples because such law s

unconstitutionally interfere with that decision. See Kitchen, 2013 WL 6697874, at *18 (“[T]he

State of Utah has not demonstrat ed a rational, much less a com pelling, reason why the Plaintiffs

should be denied their right to m arry. Consequently, the court finds that Am endment 3 violates

the Plaintiffs’ due process rights un der the Fourteenth Amendment.”); Perry, 704 F. Supp. 2d at

991 (striking down Ca lifornia marriage ban and hol ding that “[t]he fr eedom to marry is

recognized as a fundamental right protected by the Due Process Clause”); In re Marriage Cases,

183 P.3d 384, 433-34 (Cal. 2008) (holding that

state marriage ban violated plaintiffs’

fundamental right to marry); Varnum v. Brien, No. 5965, 2007 WL 2468667 (Iowa Dist. Ct. Aug.

30, 2007) (same); Goodridge, 798 N.E.2d at 957 (same).

Because the Illinois m arriage ban infringes a fundamental right, it is subject to strict

scrutiny. See Zablocki, 434 U.S. at 388 (“ When a statutory classification significantly interferes

with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently

important state inte rests and is c losely tailored to eff ectuate only those inte rests.”). Since the

marriage ban cannot survive any level of scrutiny ( see Section I(C), supra), the ban therefore

violates Plaintiffs’ due process rights under the Fourteenth Amendment.

CONCLUSION

For the reasons stated above, Plaintiffs’ motion for summary judgment should be granted,

and this Court should declare that excluding Plain tiffs from marriage violates the U nited States

Constitution’s guarantees of due process and equal protection.

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Respectfully submitted,
/s/ Jordan M. Heinz Jordan M. Heinz Jeremy Press Lally Gartel KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 Tel: (312) 862-2000 Fax: (312) 862-2200
Camilla B. Taylor Christopher R. Clark LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Midwest Regional Office 105 West Adams, Suite 2600 Chicago, Illinois 60603 Tel: (312) 663-4413 Fax: (312) 663-4307
Attorneys for Plaintiffs
Dated: December 24, 2013

John A. Knight Harvey Grossman Karen Sheley ROGER BALDWIN FOUNDATION OF ACLU, INC. 180 North Michigan Avenue, Suite 2300 Chicago, Illinois 60601 Tel: (312) 201-9740 Fax: (312) 288-5225
Marc O. Beem (Atty No. 00155284) Zachary J. Freeman (Atty No. 06281413) M. David Weisman (Atty No. 6230714) Kay L. Dawson (Atty No. 6312631)\ MILLER SHAKMAN & BEEM LLP 180 North LaSalle Street, Suite 3600 Chicago, Illinois 60601 Tel: (312) 263-3700 Fax: (312) 263-3270

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CERTIFICATE OF SERVICE I, Jordan M. Heinz, an attorn ey, certify that on December 24, 2013, I caused the foregoing document to be served via ECF, email, and U.S. Mail on the following counsel:
Kent Ray Paul Fangman ASSISTANT STATE’S ATTORNEYS 500 Richard J. Daley Center 50 West Washington Street Chicago, IL 60602 Counsel for Defendant David Orr Richard Huszagh Malini Rao Christopher Kim OFFICE OF THE ILLINOIS ATTORNEY GENERAL 100 West Randolph Street Chicago, IL 60601 Counsel for Intervenor State of Illinois
/s/ Jordan M. Heinz
17

 
 Lee v. Orr, Not Reported in F.Supp.2d (2014)

2014 WL 683680 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern
Division.
Brenda Lee and Lee Edwards; Patricia Tucker and Ingrid Swenson; Elvie Jordan and Challis Gibbs; Ronald Dorfman and Kenneth Ilio, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
David Orr, in his official capacity as Cook County Clerk, Defendant.
Case No. 13–cv–8719 | Filed February 21, 2014
Attorneys and Law Firms
Camilla Bronwen Taylor, Christopher R. Clark, Lambda Legal Defense & Education Fund, Inc., Harvey Michael Grossman, John A. Knight, Karen A. Sheley, Roger Baldwin Foundation of ACLU, Inc., Jeremy Mark Press, Jordan Mitchell Heinz, Kirkland & Ellis LLP, Kay L. Dawson, M. David Weisman, Marc Oliver Beem, Zachary J. Freeman, Miller Shakman & Beem LLP, Chicago, IL, for Plaintiffs.
Kent Stephen Ray, Paul Leo Fangman, Sisavanh Baccam Baker, Chicago, IL, for Defendant.
Opinion
MEMORANDUM OPINION AND ORDER
Sharon Johnson Coleman, United States District Judge
*1 On December 24, 2013, plaintiffs filed a motion for summary judgment [36] asserting that the Illinois ban on same-sex marriage frustrates the individual and class plaintiffs’ desire to marry in their home state by denying them equal protection under the law and infringing on their fundamental right to marry. Defendants, David Orr and the intervenor, Illinois Attorney General Lisa Madigan, do not oppose entry of summary judgment in this matter. For the reasons stated herein, this Court grants the motion.
Background

The Illinois Marriage and Dissolution of Marriage Act authorizes marriage only between a man and a woman. 750 ILCS 5/201. The statute also states that marriage between same-sex individuals is contrary to the public policy of this State. 750 ILCS 5/213.1. On November 5, 2013, the Illinois General Assembly passed Senate Bill 10 (“SB–10”) amending the Illinois marriage statute to allow same-sex couples to marry. However, SB–10 did not immediately go into effect because the Illinois Constitution, article IV, § 10, stipulates that “[a] bill passed after May 31 shall not 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.” The General Assembly did not vote in favor of an earlier effective date and therefore the plaintiffs initially asked this Court to intervene on behalf of a class of gay and lesbian couples where one or both partners were terminally ill and thus would be permanently denied the right to marry. The Court granted that motion on December 10, 2013.
Now, plaintiffs come before the Court on behalf of all gay and lesbian couples in Cook County asking this Court to find the Marriage Act that remains in effect until June 1, 2014, unconstitutional on its face as an infringement of the fundamental right to marry.
Legal Standard Summary judgment is appropriate when the record shows that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether to grant summary judgment, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. See id. at 255.
Discussion There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry. Indeed, the defendant and intervenor have joined
1

Lee v. Orr, Not Reported in F.Supp.2d (2014)
in plaintiffs’ motion, with the caveat the defendant David Orr is bound to follow the law in Illinois. Since the parties agree that marriage is a fundamental right available to all individuals and should not be denied, the focus in this case shifts from the “we can’t wait” for terminally ill individuals to “why should we wait” for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right. MARTIN LUTHER KING JR., WHY WE CAN’T WAIT 74 (1964).
*2 This Court has no trepidation that marriage is a fundamental right to be equally enjoyed by all individuals of consenting age regardless of their race, religion, or sexual orientation, and the public policy of this State has been duly amended to reflect that position. The plaintiffs are asking this Court to strike down a state statute, although they have brought suit solely against the Cook County Clerk. The cases that plaintiffs rely on in support of their motion were in a significantly different posture. In all of those cases, the plaintiffs sought to have state statutes and constitutional provisions or proposed amendments banning same sex marriage found unconstitutional either as applied to individual couples or to the state as a whole, and they faced significant opposition to their efforts. Here, the complaint affects only one county and there is no opposition. In fact, the Cook County Clerk filed a brief in support of plaintiffs’ claims. Intervenor Lisa Madigan, Illinois Attorney General, provides additional support for plaintiffs’ position in a brief filed on behalf of the State of Illinois.1 Although this Court finds that the marriage ban for

same-sex couples violates the Fourteenth Amendment’s Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit.

1

Presumably, Attorney General Madigan in her official

capacity is representing the position of all counties in

Illinois and not just the residents of Cook County.

There is no reason to delay further when no opposition has been presented to this Court and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry. Accordingly, the provisions of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/201 (authorizing marriages “between a man and a woman”), 750 ILCS 5/212(a)(5) (prohibiting marriage “between 2 individuals of the same sex”), and 750 ILCS 5/213.1 (stating that same-sex marriages are “contrary to the public policy of the state”), violate the Equal Protection Clause by discriminating against individuals based on their sexual orientation.
No genuine issue of material fact exists for a trier-of-fact to resolve therefore this Court grants summary judgment in favor of the plaintiffs.
IT IS SO ORDERED.
	  

2

 
 Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 1 of 11
TERMED,VALDEZ
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6,1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:13−cv−08719

Lee et al v. Orr Assigned to: Honorable Sharon Johnson Coleman Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 12/06/2013 Date Terminated: 02/21/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Brenda Lee

represented by Camilla Bronwen Taylor Lambda Legal Defense &Education Fund, Inc. 11 East Adams Suite 1008 Chicago, IL 60603 (312) 663−4413 Email: ctaylor@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher R. Clark Lambda Legal 105 W. Adams St. Ste. 2600 Chicago, IL 60603 (312) 663−4413 Email: cclark@lambdalegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harvey Michael Grossman Roger Baldwin Foundation of ACLU, Inc. 180 North Michigan Avenue Suite 2300 Chicago, IL 60601−7401 (312) 201−9740 Email: hgrossman@aclu−il.org ATTORNEY TO BE NOTICED

Jeremy Mark Press Kirkland &Ellis LLP 300 North Lasalle Chicago, IL 60654 (312) 862−3788 Email: jeremy.press@kirkland.com ATTORNEY TO BE NOTICED

John A. Knight Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Suite 2300 Chicago, IL 60601 (312) 201−9740, x335 Email: jknight@aclu−il.org ATTORNEY TO BE NOTICED

Karen A. Sheley ACLU of Illinois 180 North Michigan Avenue Suite 2300

Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 2 of 11

Chicago, IL 60601 (312) 201−9740 Email: ksheley@ACLU−il.org ATTORNEY TO BE NOTICED

Kay L. Dawson Miller Shakman &Beem Llp 180 N. Lasalle, Suite 3600 Chicago, IL 60601 (312) 263−3700 Email: kdawson@millershakman.com ATTORNEY TO BE NOTICED

M. David Weisman Miller Shakman &Beem LLP 180 North LaSalle Street Suite 3600 Chicago, IL 60601 (312) 263−3700 Email: dweisman@millershakman.com ATTORNEY TO BE NOTICED

Marc Oliver Beem Miller Shakman &Beem LLP 180 North LaSalle Street Suite 3600 Chicago, IL 60601 (312) 263−3700 Fax: (312) 263−3270 Email: mbeem@millershakman.com ATTORNEY TO BE NOTICED

Zachary J. Freeman Miller Shakman &Beem LLP 180 N. LaSalle Street, Suite 3600 Chicago, IL 60601 312−263−3700 Fax: 312−263−3270 Email: zfreeman@millershakman.com ATTORNEY TO BE NOTICED

Jordan Mitchell Heinz Kirkland &Ellis LLP 300 North LaSalle Street Chicago, IL 60654 (312)469−7027 Email: jheinz@kirkland.com ATTORNEY TO BE NOTICED

Plaintiff Lee Edwards

represented by Camilla Bronwen Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harvey Michael Grossman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 3 of 11

Jeremy Mark Press (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Karen A. Sheley (See above for address) ATTORNEY TO BE NOTICED

Kay L. Dawson (See above for address) ATTORNEY TO BE NOTICED

M. David Weisman (See above for address) ATTORNEY TO BE NOTICED

Marc Oliver Beem (See above for address) ATTORNEY TO BE NOTICED

Zachary J. Freeman (See above for address) ATTORNEY TO BE NOTICED

Jordan Mitchell Heinz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Patricia Tucker

represented by Camilla Bronwen Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harvey Michael Grossman (See above for address) ATTORNEY TO BE NOTICED

Jeremy Mark Press (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Karen A. Sheley (See above for address) ATTORNEY TO BE NOTICED

Kay L. Dawson (See above for address) ATTORNEY TO BE NOTICED

M. David Weisman

Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 4 of 11

(See above for address) ATTORNEY TO BE NOTICED

Marc Oliver Beem (See above for address) ATTORNEY TO BE NOTICED

Zachary J. Freeman (See above for address) ATTORNEY TO BE NOTICED

Jordan Mitchell Heinz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ingrid Swenson

represented by Camilla Bronwen Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harvey Michael Grossman (See above for address) ATTORNEY TO BE NOTICED

Jeremy Mark Press (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Karen A. Sheley (See above for address) ATTORNEY TO BE NOTICED

Kay L. Dawson (See above for address) ATTORNEY TO BE NOTICED

M. David Weisman (See above for address) ATTORNEY TO BE NOTICED

Marc Oliver Beem (See above for address) ATTORNEY TO BE NOTICED

Zachary J. Freeman (See above for address) ATTORNEY TO BE NOTICED

Jordan Mitchell Heinz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Elvie Jordan

represented by

Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 5 of 11

Camilla Bronwen Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harvey Michael Grossman (See above for address) ATTORNEY TO BE NOTICED

Jeremy Mark Press (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Karen A. Sheley (See above for address) ATTORNEY TO BE NOTICED

Kay L. Dawson (See above for address) ATTORNEY TO BE NOTICED

M. David Weisman (See above for address) ATTORNEY TO BE NOTICED

Marc Oliver Beem (See above for address) ATTORNEY TO BE NOTICED

Zachary J. Freeman (See above for address) ATTORNEY TO BE NOTICED

Jordan Mitchell Heinz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Challis Gibbs

represented by Camilla Bronwen Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harvey Michael Grossman (See above for address) ATTORNEY TO BE NOTICED

Jeremy Mark Press (See above for address) ATTORNEY TO BE NOTICED

Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 6 of 11

Plaintiff Ronald Dorfman

John A. Knight (See above for address) ATTORNEY TO BE NOTICED
Karen A. Sheley (See above for address) ATTORNEY TO BE NOTICED
Kay L. Dawson (See above for address) ATTORNEY TO BE NOTICED
M. David Weisman (See above for address) ATTORNEY TO BE NOTICED
Marc Oliver Beem (See above for address) ATTORNEY TO BE NOTICED
Zachary J. Freeman (See above for address) ATTORNEY TO BE NOTICED
Jordan Mitchell Heinz (See above for address) ATTORNEY TO BE NOTICED
represented by Camilla Bronwen Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher R. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harvey Michael Grossman (See above for address) ATTORNEY TO BE NOTICED
Jeremy Mark Press (See above for address) ATTORNEY TO BE NOTICED
John A. Knight (See above for address) ATTORNEY TO BE NOTICED
Karen A. Sheley (See above for address) ATTORNEY TO BE NOTICED
Kay L. Dawson (See above for address) ATTORNEY TO BE NOTICED
M. David Weisman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 7 of 11

Marc Oliver Beem (See above for address) ATTORNEY TO BE NOTICED

Zachary J. Freeman (See above for address) ATTORNEY TO BE NOTICED

Jordan Mitchell Heinz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kenneth Ilio on behalf of themselves and all others similarly situated

represented by Camilla Bronwen Taylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harvey Michael Grossman (See above for address) ATTORNEY TO BE NOTICED

Jeremy Mark Press (See above for address) ATTORNEY TO BE NOTICED

John A. Knight (See above for address) ATTORNEY TO BE NOTICED

Karen A. Sheley (See above for address) ATTORNEY TO BE NOTICED

Kay L. Dawson (See above for address) ATTORNEY TO BE NOTICED

M. David Weisman (See above for address) ATTORNEY TO BE NOTICED

Marc Oliver Beem (See above for address) ATTORNEY TO BE NOTICED

Zachary J. Freeman (See above for address) ATTORNEY TO BE NOTICED

Jordan Mitchell Heinz (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

represented by

Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 8 of 11

David Orr in his official capacity as

Kent Stephen Ray Cook County State's Attorney's Office Conflicts Counsel Unit 69 West Washington Street Suite 2030 Chicago, IL 60602 (312) 603−1427 Email: kent.ray@cookcountyil.gov ATTORNEY TO BE NOTICED

Paul Leo Fangman Cook County State's Attorney's Office 50 W. Washington Street Chicago, IL 60602 (312) 603−5480 Email: pfangman@hotmail.com ATTORNEY TO BE NOTICED

Sisavanh Baccam Baker Cook County States Attorney's Office Daley Ctr. 500 Richard J. Daley Center Chicago, IL 60602 312 603 7998 Email: sisavanh.baker@cookcountyil.gov ATTORNEY TO BE NOTICED

Intervenor Plaintiff Ill. Att'y Gen& Lisa Madigan

represented by Richard Scott Huszagh Office of the Attorney General 100 West Randolph Street Chicago, IL 60601 (312) 814−2587 Email: rhuszagh@atg.state.il.us LEAD ATTORNEY

Christopher J. Kim Office Of The Attorney General − State Of Illinois 100 West Randolph Street 11th Floor Chicago, IL 60601 (312) 793−2403 Email: ckim@atg.state.il.us ATTORNEY TO BE NOTICED

Malini Rao Illinois Attorney General's Office (100 W) 100 West Randolph Street Chicago, IL 60601 312 814 3909 Email: mrao@atg.state.il.us ATTORNEY TO BE NOTICED

Date Filed 12/06/2013
12/06/2013

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief filed by Kenneth Ilio, Challis Gibbs, Ingrid Swenson, Brenda Lee, Patricia Tucker, Ronald Dorfman, Lee Edwards, Elvie Jordan; Filing fee $ 400, receipt number 0752−9000297.(Heinz, Jordan) (Entered: 12/06/2013)
2 CIVIL Cover Sheet (Heinz, Jordan) (Entered: 12/06/2013)

Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 9 of 11

12/06/2013 12/06/2013 12/06/2013 12/06/2013
12/06/2013
12/06/2013 12/06/2013 12/06/2013 12/06/2013 12/06/2013 12/06/2013 12/06/2013 12/06/2013 12/06/2013 12/06/2013 12/06/2013
12/09/2013

3 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by Jordan Mitchell Heinz (Heinz, Jordan) (Entered: 12/06/2013)
4 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by Camilla Bronwen Taylor (Taylor, Camilla) (Entered: 12/06/2013)
5 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by Christopher R. Clark (Clark, Christopher) (Entered: 12/06/2013)
6 MOTION by Plaintiffs Ronald Dorfman, Challis Gibbs, Kenneth Ilio, Elvie Jordan for temporary restraining order , MOTION by Plaintiffs Ronald Dorfman, Challis Gibbs, Kenneth Ilio, Elvie Jordan for preliminary injunction (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order)(Heinz, Jordan) (Entered: 12/06/2013)
7 MEMORANDUM by Ronald Dorfman, Challis Gibbs, Kenneth Ilio, Elvie Jordan in support of motion for temporary restraining order,, motion for preliminary injunction, 6 (Attachments: # 1 Exhibit A, # 2 Declaration of Elvie Jordan, # 3 Declaration of Challis Gibbs, # 4 Declaration of Ronald Dorfman, # 5 Declaration of Kenneth Ilio)(Heinz, Jordan) (Entered: 12/06/2013)
8 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by Harvey Michael Grossman (Grossman, Harvey) (Entered: 12/06/2013)
9 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by John A. Knight (Knight, John) (Entered: 12/06/2013)
10 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by Karen A. Sheley (Sheley, Karen) (Entered: 12/06/2013)
CASE ASSIGNED to the Honorable Sharon Johnson Coleman. Designated as Magistrate Judge the Honorable Maria Valdez. (nsf, ) (Entered: 12/06/2013)
11 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by Marc Oliver Beem (Beem, Marc) (Entered: 12/06/2013)
12 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by M. David Weisman (Weisman, M.) (Entered: 12/06/2013)
13 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by Zachary J. Freeman (Freeman, Zachary) (Entered: 12/06/2013)
14 ATTORNEY Appearance for Intervenor Plaintiff Lisa Madigan by Richard Scott Huszagh (Huszagh, Richard) (Entered: 12/06/2013)
15 MOTION by Intervenor Plaintiff Lisa Madigan to intervene (Attachments: # 1 Proposed Pleading in Intervention)(Huszagh, Richard) (Entered: 12/06/2013)
16 MEMORANDUM by Lisa Madigan in support of motion for temporary restraining order,, motion for preliminary injunction, 6 (Huszagh, Richard) (Entered: 12/06/2013)
17 NOTICE of Motion by Jordan Mitchell Heinz for presentment of motion for temporary restraining order,, motion for preliminary injunction, 6 before Honorable Sharon Johnson Coleman on 12/9/2013 at 01:30 PM. (Heinz, Jordan) (Entered: 12/06/2013)
18 ATTORNEY Appearance for Intervenor Plaintiff Lisa Madigan by Malini Rao , Assistant Attorney General (Rao, Malini) (Entered: 12/09/2013)

Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 10 of 11

12/09/2013 12/09/2013 12/09/2013 12/09/2013
12/09/2013 12/10/2013
12/10/2013 12/11/2013 12/13/2013 12/13/2013 12/13/2013 12/13/2013 12/16/2013
12/16/2013 12/22/2013

19 ATTORNEY Appearance for Defendant David Orr by Paul Leo Fangman (Fangman, Paul) (Entered: 12/09/2013)
20 ATTORNEY Appearance for Defendant David Orr by Kent Stephen Ray (Ray, Kent) (Entered: 12/09/2013)
21 ATTORNEY Appearance for Defendant David Orr by Sisavanh Baccam Baker (Baker, Sisavanh) (Entered: 12/09/2013)
22 MINUTE entry before the Honorable Sharon Johnson Coleman: Motion hearing held on 12/9/2013 on Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction 6 and the Illinois Attorney General's Motion to Intervene 15 . The Motion to Intervene is granted. After hearing oral arguments on the Motion and considering the submissions of the Parties, this Court grants the temporary restraining order for the named plaintiffs and takes under advisement the motion with respect to the putative subclass. The parties are to advise the Court if an agreement is reached as to particular language or procedure for implementation of injunctive relief should a TRO be granted to the proposed subclass of plaintiffs. Status hearing and ruling set for 12/16/2013 at 10:00 a.m. Enter Temporary Restraining Order.Mailed notice (rth, ) (Entered: 12/10/2013)
23 TEMPORARY Restraining Order Signed by the Honorable Sharon Johnson Coleman on 12/9/2013:Mailed notice(rth, ) (Entered: 12/10/2013)
24 MINUTE entry before the Honorable Sharon Johnson Coleman: For the reasons stated herein, and contingent upon an agreement between the parties of a sufficiently delineated subclass or a satisfactory method of implementation of this Order, this Court grants the plaintiffs' motion for temporary injunctive relief. Status hearing set for 12/16/2013 at 10:00 a.m. to stand. Enter Memorandum Opinion and Order.Mailed notice (rth, ) (Entered: 12/10/2013)
25 MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 12/10/2013:Mailed notice(rth, ) (Entered: 12/10/2013)
26 Intervenor's Pleading by Lisa Madigan (Huszagh, Richard) (Entered: 12/11/2013)
27 ATTORNEY Appearance for Intervenor Plaintiff Lisa Madigan by Christopher J. Kim (Kim, Christopher) (Entered: 12/13/2013)
28 MOTION by Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker to certify class (Attachments: # 1 Text of Proposed Order)(Beem, Marc) (Entered: 12/13/2013)
29 NOTICE of Motion by Marc Oliver Beem for presentment of motion to certify class 28 before Honorable Sharon Johnson Coleman on 12/16/2013 at 10:00 AM. (Beem, Marc) (Entered: 12/13/2013)
30 MEMORANDUM by Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker in support of motion to certify class 28 (Beem, Marc) (Entered: 12/13/2013)
31 MINUTE entry before the Honorable Sharon Johnson Coleman: Status hearing held on 12/16/2013. Plaintiffs' motion to certify the sub−class is granted based on the court's previous ruling. Plaintiffs' motion to certify class, presented in court, there being no objection 28 is granted. Plaintiffs' motion for preliminary injunction as to the sub−class of the medically critical individuals is granted and entered. Enter Preliminary Injunction. Plaintiffs' motion for summary judgment to be filed by 12/24/2013. Response due by 1/9/2014. Reply, if necessary, due by 1/16/2014. Attorney General intervenor to file supporting brief by 1/9/2014. Upon being fully briefed, the court will inform the parties if oral argument is needed, otherwise it is taken under advisement. Mailed notice (rth, ) (Entered: 12/16/2013)
32 PRELIMINARY INJUNCTION Signed by the Honorable Sharon Johnson Coleman on 12/16/2013:Mailed notice(rth, ) (Entered: 12/16/2013)
33 TRANSCRIPT OF PROCEEDINGS held on 12/9/13 before the Honorable Sharon Johnson Coleman. TRO. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, Tracey_Mccullough@ilnd.uscourts.gov.

Case: 1:13-cv-8719 As of: 02/21/2014 07:08 PM CST 11 of 11

12/24/2013 12/24/2013 12/24/2013 12/24/2013
01/07/2014 01/09/2014 01/09/2014 01/09/2014 01/16/2014 01/17/2014 02/11/2014 02/21/2014
02/21/2014

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 1/13/2014. Redacted Transcript Deadline set for 1/22/2014. Release of Transcript Restriction set for 3/24/2014. (Mccullough, Tracey) (Entered: 12/22/2013)
34 WAIVER OF SERVICE returned executed by Patricia Tucker, Lee Edwards, Brenda Lee, Ingrid Swenson. David Orr waiver sent on 12/23/2013, answer due 2/21/2014. (Heinz, Jordan) (Entered: 12/24/2013)
35 MOTION by Plaintiffs Patricia Tucker, Lee Edwards, Brenda Lee, Ingrid Swenson for summary judgment (Heinz, Jordan) (Entered: 12/24/2013)
36 MEMORANDUM by Lee Edwards, Brenda Lee, Ingrid Swenson, Patricia Tucker in support of motion for summary judgment 35 (Heinz, Jordan) (Entered: 12/24/2013)
37 RULE 56 Statement by Lee Edwards, Brenda Lee, Ingrid Swenson, Patricia Tucker regarding motion for summary judgment 35 (Attachments: # 1 Declaration of Jordan Heinz, # 2 Exhibit 1 to Declaration of Jordan Heinz, # 3 Exhibit 2 to Declaration of Jordan Heinz, # 4 Declaration of Brenda Lee, # 5 Declaration of Lee Edwards, # 6 Declaration of Patricia Tucker, # 7 Declaration of Ingrid Swenson)(Heinz, Jordan) (Entered: 12/24/2013)
38 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by Kay L. Dawson (Dawson, Kay) (Entered: 01/07/2014)
39 MEMORANDUM by Lisa Madigan in support of motion for summary judgment 35 (Huszagh, Richard) (Entered: 01/09/2014)
40 MEMORANDUM motion for summary judgment 35 by David Orr Response (Fangman, Paul) (Entered: 01/09/2014)
41 RULE 56 56.1(b) Statement by David Orr regarding motion for summary judgment 35 Response (Fangman, Paul) (Entered: 01/09/2014)
42 ATTORNEY Appearance for Plaintiffs Ronald Dorfman, Lee Edwards, Challis Gibbs, Kenneth Ilio, Elvie Jordan, Brenda Lee, Ingrid Swenson, Patricia Tucker by Jeremy Mark Press (Press, Jeremy) (Entered: 01/16/2014)
43 SUPPLEMENT to motion for summary judgment 35 , memorandum in support of motion 36 (Attachments: # 1 Exhibit A)(Press, Jeremy) (Entered: 01/17/2014)
44 SUGGESTION of Death as to Plaintiff Ronald Dorfman (Heinz, Jordan) (Entered: 02/11/2014)
45 MINUTE entry before the Honorable Sharon Johnson Coleman: No genuine issue of material fact exists for a trier−of−fact to resolve therefore this Court grants summary judgment 35 in favor of the plaintiffs. Enter Memorandum Opinion and Order. Civil case terminated. Mailed notice (rth, ) (Entered: 02/21/2014)
46 MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 2/21/2014:Mailed notice(rth, ) (Entered: 02/21/2014)

 
 Lee v. Orr, Not Reported in F.Supp.2d (2013)

2013 WL 6490577 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern
Division.
Brenda Lee and Lee Edwards; Patricia Tucker and Ingrid Swenson; Elvie Jordan and Challis Gibbs; Ronald Dorfman and Kenneth Ilio, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
David Orr, in his official capacity as Cook County Clerk, Defendant.
Case No. 13–cv–8719 | December 10, 2013
Attorneys and Law Firms
Camilla Bronwen Taylor, Christopher R. Clark, Lambda Legal Defense & Education Fund, Inc., Harvey Michael Grossman, John A. Knight, Roger Baldwin Foundation of ACLU, Inc., Karen A. Sheley, ACLU of Illinois, M. David Weisman, Marc Oliver Beem, Zachary J. Freeman, Miller Shakman & Beem LLP, Jordan Mitchell Heinz, Kirkland & Ellis LLP, Chicago, IL, for Plaintiffs.
Opinion
MEMORANDUM OPINION AND ORDER
Sharon Johnson Coleman, United States District Judge
*1 Plaintiffs, Elvie Jordan, Challis Gibbs, Ronald Dorfman, and Kenneth Ilio (collectively “medically critical plaintiffs”), filed a motion for temporary restraining order and preliminary injunction [6] on behalf of themselves and a putative subclass of individuals in same-sex relationships who have a similar need to marry prior to June 1, 2014, due to a life-threatening illness of one or both parties. The Illinois Attorney General moved to intervene [15] in this case to address the plaintiffs’ challenge to the constitutional validity, as applied to them, of the provisions of the Illinois Marriage and Dissolution of Marriage Act, 750 Ill. Comp. Stat. § 5/101, et seq. prohibiting marriage between same-sex couples. The Illinois Attorney General also filed a brief supporting plaintiffs’ claim based on the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
This Court heard oral arguments on the motion for TRO

and preliminary injunction on December 9, 2013, and granted the Illinois Attorney General’s Motion to Intervene and also granted the named plaintiffs’ Temporary Restraining Order. This Court took under advisement the Motion for TRO and preliminary injunction brought on behalf of the subclass. For the reasons stated herein, the motion is granted.
Background Under current Illinois law, same-sex partners are prohibited from marrying. 750 Ill. Comp. Stat. 5/212(a)(5). However, on November 5, 2013, both houses of the Illinois General Assembly passed Public Act 98–597 (Senate Bill 10), amending the Illinois Marriage and Dissolution of Marriage Act to permit same-sex couples to legally marry in Illinois. Although the bill was signed into law on November 20, 2013, it does not become effective until June 1, 2014, by operation of Article IV, Section 10, of the Illinois Constitution.
On December 6, 2013, plaintiffs filed a class action complaint seeking declaratory and injunctive relief alleging a violation of plaintiffs’ rights under the Fourteenth Amendment to the United States Constitution caused by the exclusion of same-sex couples from marrying in Illinois. The Illinois Attorney General joined in support of the plaintiffs’ request, arguing that the named plaintiffs and the putative subclass of medically critical plaintiffs meet the requirements for immediate injunctive relief. Defendant David Orr, Cook County Clerk, stated in Court that he does not oppose the motion, but must follow the law as it stands and cannot issue marriage licenses to same-sex couples without a court order.
Both Elvie Jordan and Challis Gibbs, and Ronald Dorfman and Ken Ilio have been in long-term committed relationships and wish to be married. Each couple has been together for more than twenty years and each couple has entered a civil union, demonstrating their commitment. Challis Gibbs and Ronald Dorfman are now suffering from life-threatening illnesses. Ms. Gibbs has stage-IV metastatic neuroendocrine cancer and spent most of November in hospital. Mr. Dorfman has systolic congestive heart failure with a complete blockage of his right coronary artery and uncertain treatment prospects. The proposed subclass contemplates couples facing similarly dire circumstances such that without relief from this Court they will be effectively denied the right to marry now provided for under Senate Bill 10.
1

Lee v. Orr, Not Reported in F.Supp.2d (2013)
Legal Standard *2 “The standards for issuing [a temporary restraining order (“TRO”) ] are identical to the standards preliminary injunctions,” Long v. Bd. of Educ., Dist. 128, 167 F.Supp.2d 988, 990 (N.D. Ill. 2001). In determining whether to grant injunctive relief, this Court must first consider whether the moving party has demonstrated: (1) some likelihood of success on the merits, (2) there is no adequate remedy at law, and (3) irreparable injury will occur without obtaining the relief sought. Planned Parenthood of Indiana, Inc. v. Comm’r of Indiana State Dep’t Health, 699 F.3d 962, 972 (7th Cir. 2012). If the moving party meets these requirements, the Court then balances the harm to the non-moving party if preliminary relief is granted against the harm to moving party if relief is denied. Id. Lastly, the Court considers the public interest involved in either granting or denying the motion. Id. The Seventh Circuit employs a sliding scale analysis weighing the harm to a party against the merits of the case. “The more likely it is that [the moving party] will win its case on the merits, the less the balance of harms need weigh in its favor.” Id. (quoting Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079, 1100 (7th Cir. 2008)).
Discussion At the outset, this Court notes that it is not the first to grant injunctive relief under circumstances similar to the facts before this Court. On November 25, 2013, the Honorable Thomas Durkin entered an Order granting a TRO allowing the plaintiffs, Vernita Gray and Patricia Ewert to obtain a marriage license and to wed prior to the June 1, 2014, effective date of Senate Bill 10. See Gray v. Orr, No. 13 C 8449 (Dec. 5, 2013). Ms. Gray is terminally ill with cancer. The court found after weighing all the factors and the compelling circumstances of Ms. Gray’s potentially imminent death, that the injury that she and Ms. Ewert would suffer by denial of injunctive relief would be irreparably great. Id.
Judge Durkin’s decision in Gray v. Orr was limited to those particular plaintiffs. Likewise, this Court has entered an Order granting relief to Elvie Jordan, Challis Gibbs, Ronald Dorfman, and Kenneth Ilio. Before the Court now, is the question of whether to grant injunctive relief to the proposed subclass of plaintiffs facing similarly dire circumstances.
“District courts have the power to order injunctive relief covering potential class members prior to class certification.” Ill. League of Advocates for the

Developmentally Disabled v. Ill. Dep’t of Human Servs., No. 13 C 1300, 2013 U.S. Dist. LEXIS 90977 (N.D. Ill. June 28, 2013). “The court may conditionally certify the class or otherwise order a broad preliminary injunction, without a formal class ruling, under its general equity powers. The lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.” Id. (citing 3 Newberg on Class Actions § 9:45 (4th ed. 2002) and N.Y. State Nat. Org. For Women v. Terry, 697 F.Supp. 1324, 1336 (S.D.N.Y. 1988)). Here, this Court will forgo a conditional class ruling at this time, but use its general equity powers to order preliminary injunctive relief for the proposed subclass of plaintiffs. Considering this is the second such case to come before a court in this district, the interest of efficiency and economy compel entry of such an order. The Court now turns to a brief discussion of the factors supporting injunctive relief.
1. Likelihood of Success on the Merits The putative subclass of medically critical plaintiffs here are likely to succeed on the merits of their claim that the provisions of the current Illinois law that deny them the right to marry based solely on their sexual orientation, as applied, violates their constitutional right to equal protection. Gradually, the United States Supreme Court has invalidated laws that single out gay and lesbian individuals for disparate treatment. See Windsor v. United States, 133 S.Ct. 2675, 2692–96 (2013) (holding the Defense of Marriage Act’s restrictions on same-sex couples unconstitutional as a deprivation of liberty); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (overruling Bowers v. Hardwick, 478 U.S. 186 (1986), and finding the criminal anti-sodomy law an unconstitutional government intrusion on the personal and private life of consenting adult individuals); Romer v. Evans, 517 U.S. 620 (1996) (invalidating a state law prohibiting local ordinances banning discrimination against gays and lesbians). The Illinois law, particularly the 1996 amendment to the Marriage Act declaring that same-sex marriages are against public policy, is clearly intended to single out gays and lesbians for disparate treatment based solely on their sexual orientation. Moreover, the new amendment contained in Senate Bill 10 legalizing same-sex marriage is an express repudiation of the state’s earlier position and undermines the traditionally invoked justifications for the prohibition on same-sex marriage. As set forth in Windsor, denying same-sex couples equal status under the law serves no constitutionally legitimate purpose. 133 S.Ct. at 2693–96.1 Therefore, this Court finds that the putative class of medically critical individuals are likely to succeed on the merits of their claim.
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Lee v. Orr, Not Reported in F.Supp.2d (2013)

1

While the Supreme Court has yet to expressly state the

level of scrutiny that courts are to apply to claims based

on sexual orientation, this Court need not decide that

issue since a fair reading of Windsor suggests that the

law as it stands in Illinois would not survive even

minimum rational basis scrutiny.

2. Irreparable Injury and Inadequate Remedy at Law *3 Like the named subclass representatives, Jordan, Gibbs, Dorfman, and Ilio, the putative subclass members would easily demonstrate irreparable harm if in substantially similar circumstances with one or both members of the couple gravely ill. At the hearing on the instant motion, defendant David Orr, expressed a concern that is shared by this Court—how to implement a ruling in favor of the medically critical subclass. As Clerk of Cook County, Orr does not have discretion to determine who might fit this subclass. The Court has requested the parties to confer and provide either sufficiently limited agreed language delineating the subclass or some method, such as an affidavit or certified medical report, for implementing the Court’s Order.
To satisfy the requirement of irreparable injury, the members of the subclass must demonstrate that they will be unable to marry if forced to wait until after June 1, 2014, due to the medical condition of one or both parties. If forced to wait until after June 1, 2014, to marry they will be deprived of significant federal rights and benefits such as, the right to take leave under the Family and Medical Leave Act, 29 U.S.C. § 2614(c)(1); the right file a joint income tax return and avail themselves of spousal tax benefits, especially exemptions from certain estate tax obligations; and eligibility for social security surviving spouse benefits. See Windsor, 133 S.Ct. at 2692–96 (holding that federal laws based on marital status must apply to same-sex marriages recognized under state law). These federal rights and benefits are particularly

momentous for the putative subclass of medically critical plaintiffs contemplated by this Order. Equally compelling are the intangible personal and emotional benefits that the dignity of equal and official marriage status confers. Id. at 2692. Unquestionably, there is no adequate remedy at law for these plaintiffs.
3. Balance of Harms and Public Interest The balance of harms and the public interest weigh heavily in favor of granting the temporary injunctive relief sought here. Given the Illinois General Assembly’s enactment of Senate Bill 10, any erroneous decision here would only result in allowing a relatively few people to marry a short period of time sooner. The harm to the putative subclass of medically critical plaintiffs, on the other hand, would be far weightier since a denial of relief could effectively deny them the right to marry at all if one member of the couple passes away before June 1, 2014. Furthermore, by officially extending the institution of marriage to same-sex couples, the Illinois General Assembly has demonstrated that marriage equality serves the public interest. This Court can conceive of no reason why the public interest would be disserved by allowing a few couples facing terminal illness to wed a few months earlier than the timeline would currently allow.
Conclusion For the reasons stated herein, and contingent upon an agreement between the parties of a sufficiently delineated subclass or a satisfactory method of implementation of this Order, this Court grants the plaintiffs’ motion for temporary injunctive relief. Status hearing set for 12/16/2013 at 10:00 a.m. to stand.
IT IS SO ORDERED.
	  

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