Illinois same-sex marriage plaintiffs put children first

Author: Darryl Grant
Publication: The Examiner
Publication Date: July 20th, 2012

Click here to read the full story at Examiner

When the 7-year-old daughter of Theresa Volpe and Mercedes Santos, of Chicago, had to explain to her grade-school classmates, as part of a presentation on student families, that her parents were joined in a civil union, she found the task difficult, to say, the least; not withstanding that many adults don't understand exactly what they are either.

And, on Tuesday evening, Volpe and Santos appeared as part of a joint presentation sponsored by the American Civil Liberties Union of Illinois and Lambda Legal at the Center on Halsted to show the very human side of the same-sex marriage debate, one of the more prominent of the social and political bot-button issues facing, not only American society, in general, but also the political platforms of the two presidential candidates, incumbent Barack Obama, and his de facto Republican challenger, Mitt Romney.

Obama, of course, broke his "evolving" status in early May, to come out in favor of gays and lesbians marrying.

Since that time, the same-sex marriage debate has continued in a variety of patterns, forms, and frameworks, most often in the legal arena, but also as part of a federalist effort, linked to the so-called Tea party movement, that often advocates a federalist states-rights position, to name but one.

Along with Carlos Briones and Richard Rykhus of Evanston, they are part of 25 couples across the state of Illinois, named as plaintiffs in a lawsuit that was filed at the end of May, by both Lambda Legal and the ACLU, against the Clerk of Cook County, with the claim that the refusal to issue marriage licenses to gay and lesbian couples violates both the equal protection and due process clauses of the Illinois Constitution.

Volpe and Santos were also joined by Carlos Briones, representing his partner, Richard Rykhus, and their 7-year-old son, Ty, who were unable to appear due to last minute obligations.

Moderated by Lisa Gilmore, Director of Education and Victim Advocacy, the evening also featured the couple's respective attorneys: Karen Sheley of the ACLU and Jordan Heinz, of the law firm, Kirkland and Ellis, and who has partnered with Lambda Legal to help with the suit.

Heinz is also on his firm's Diversity Committee, the LGBT Subcommittee and a board member of the AIDS Legal Council of Chicago.

Gilmore opened the evening with one simple question: "Why are you seeking the right to marry?"

Volpe immediately responded by saying, "For our children, we should have the same rights [as non-gays] and also for each other."

That remark set the tone for the evening, as again and again, the point was driven home that these are families, albeit different from the mid-century ideal, as represented by the 60s sitcom, "Leave It to Beaver."

And, within that theme, was the love and care for children, which those present were given a visual reminder in the persons of Volpe and Santos' two children, who sat behind them on the stage in the Center's auditorium, playing quietly with an I-PAD, and other electronic games.

Santos also emphasized the family structure which allowed them to raise their children "with good values, such as love and respect."

Briones also noted, "I love my son and husband."

Values meet the legislative process

Such seemingly simple values - but ones that have implications not simply for the state of Illinois, but also for the nation, as a whole; who now have seen the issue explode over the last decade, from one that perhaps only a handful of supporters and advocates originally envisioned, to one that has challenged the country, in its seemingly limitless quest to continue transforming itself from its colonial origins to a super power, and one that has become the model of civil rights progression in places as far away as Northern Ireland and South Africa.

An analysis of the issue, over a decade, was led by two pollsters of both President Obama and former President George W. Bush whose results "showed that support for marriage equality nationwide rose about one percent per year between 1996 and 2009, but jumped to five percent per year in 2010 and 2011," as noted by Evan Wolfson, president of the national group Freedom to Marry, in an interview earlier this year with the Keen News Service.

Almost all present agreed that civil unions while welcomed as a first-step, lack the basic benefits that are afforded heterosexual couples, especially in the area of tax, and survivor benefits; and also for such basic rights as hospital visitation for both spouse and children.

And, in a statement, released Friday, by Equality Illinois, released Tuesday, CEO, Bernard Cherkasov noted, "One of the problems in Illinois is that while civil union couples should be treated the same as married couples under state law, many officials and institutions don't understand that. On top of that, when Illinois same-sex couples travel with their children, they fear that the rights of both parents won't be recognized, especially in an emergency."

The looming specter of DOMA

A necessary adjunct to this direction, according to both attorneys present, was the necessary repeal of the 1996 Defense of Marriage Act, known as DOMA, for as long as this federal law (that defines legal marriage as between one man and one woman) remains on the books the issue of marriage-equality remains fraught with problems, from A to Z.

Sheley noted that the expectation among many, in the legal community, was that DOMA will be taken up by the United States Supreme Court, and struck down as unconstitutional, thus paving the way for state laws to change in favor of same-sex couples.

Separate but unequal

But, there is also the perception among many supporters, those present included, that civil unions lack not only a "spiritual quality", but that they are seen as less than equal to marriage; and in fact Santos noted that some of her family members did not attend her civil union ceremony, because it was perceived as less than a "real" marriage.

Briones seconded that by stressing that he wanted his adopted son to feel that he "belonged to a family" and that the term marriage signified that.

Sheley also noted that civil unions sound ominously like the "separate but equal" concept that ruled much of pre-integrated America, until Brown v. Board of Education that struck down educational separation in 1954.

Another legal precedent analogy she cited was Loving v. Virginia that ended race-based legal restrictions in 1967, although as she noted, there is hesitancy "to draw a clean line" joining the issue of same-sex marriage with race-based restrictions.

There is within the LGBT community a broad spectrum that faces many of the same issues that Volpe, Santos, and Briones represented, and one name most prominently recognized, for many gay Illinoisans, is that of State Rep. (D-Chicago) Kelly Cassidy, a partnered lesbian with three children, who noted in an interview, with me, that this issue "comes back to my kids" and that "wherever you go, or travel, you shouldn't have to explain this to medical providers," to get treatment or access, as Cherkasov explained.

She also noted that "until we get all the way there" with the end of DOMA, that gay and lesbian partners face hurdles like her own experience in filing state taxes in Illinois where to jointly file, a "dummy" federal form had to be created, and one that had no legal status, but was merely a conduit in the filing process..

Another issue, not faced by non-gay couples is that she, and other same-sex couples, lose the right to file electronically, due to the presence of DOMA; a perfect example of what she deemed as the "law of unintended consequences."

Another legal view

Also on the equality front is Betty Tsamis, local attorney, former aldermanic candidate, and a partnered lesbian with a 7-month-old infant named Max, who stresses, "there is a fundamental right to marry the person of your choice, and that within reasonable legal parameters, there is no reason to deny marriage to same-sex partners."

Tsamis also noted that while the US Supreme Court has acted to strike down laws such as Loving, that "it does not act until the time is right," and told me, in our interview, that "many states before had removed laws banning interracial marriage."

Likewise she opposes the federalist view of states-rights as "an ad-hoc approval that does not work, for the obvious reason that people travel freely, and the reality of a border check does not hold water."

Tsamis, like Volpe, notes the positive effects on children that the legal change can affect, and specifies that there is an "emotional empowerment to know what and how to say to the children about [our permanent] relations."

Perhaps, most importantly she notes that "there are other intangible effects on families," and that the change in terminology affects the children's self-empowerment, and they can then understand the differences with other families when the question is raised, "Why are we different?"

Tsamis continued by noting that these and other aspects of identification march across the life-span from "elementary school to high school and college."

Most importantly, for those opposed to same-sex marriage, on religious grounds, she said, "we're not looking to change anyone's religious beliefs; this is a legal rights issue."

When she was asked about what her criteria definition was, she replied, "This is about love as the criteria, no other standard applies."

Win, lose or draw?

Of course, in such a hot-button issue as this, there is the desire to win, and when Sheley and Heinz were asked about the success of their efforts they noted that they had the backing of "knowledgeable and well respected experts" and that win "our couples tell their stories," that hearts, as well as minds can change.

And, Heinz noted, especially, that "it's time, Illinois is ready for this" and there exists "real shifts in the way people perceive this issue - and that this is the right thing to do."

Sheley humorously noted that when same-sex marriage was approved in Canada that "the sky didn't fall, and that parents did not have to [suddenly] find same-sex partners."

Both noted that Illinois Attorney General Lisa Madigan who won't defend the state's marriage ban, and also that Cook County Clerk David Orr agree with two plaintiffs who filed a suit against him that the Illinois' ban is unconstitutional and that "Marriage equality is long overdue in Illinois," and furthermore, "I support it in no uncertain terms."

But, many have wondered whether the moribund state economy may take precedence over a marriage equality bill, but Cassidy remarked when I asked her about this, "When we get the 60 votes needed, we'll go with it, that's how it works."

Furthermore, she noted that "we will move with reasonable speed, we're on this anyway," and noted, as did the attorneys, that the "fed will have to be resolved" meaning the ending of DOMA.

Cassidy also said that the plaintiffs are "amazing folks," and that "they have put their stories out in a compelling way, and it's just beautiful to see."

But, in the end, it may simply come down to both the public and their legislators, identifying one simple issue - love - and as Tsamis noted succinctly, the "only criterion needed."