MEMORANDUM OPINION AND ORDER
Jacqueline Ann Gomez, by her next friend, Virginia Hernandez; Melissa Erin Simmons, by her next friend, Dori Sauceda; and Chrystina Smith and Zachary Smith, by their next friend, Sharon Smith, individually and behalf of all others similarly situated (collectively "plaintiffs"), sue Harry G. Comerford, Chief Judge of the Circuit Court of Cook County, Illinois, in his official capacity under 42 U.S.C. P 1983. Plaintiffs allege that Judge Comerford has violated their rights under the equal protection clause of the Fourteenth Amendment of the United States Constitution by adopting and enforcing two separate and unequal systems for adjudicating child support, custody and visitation disputes in the Circuit Court of Cook County. Plaintiffs seek declaratory and injunctive relief. Judge Comerford moves to dismiss plaintiffs' amended complaint under Fed. R. Civ. P. 12(b)(6), while plaintiffs move for class certification under Fed. R. Civ. P. 23.
Judge Comerford is responsible for the organization of the Cook County Circuit Court into two departments: the county department and the municipal department. Amended Complaint P 12. One of the divisions of the county department, the domestic relations division, hears family law matters including cases involving support, custody, and visitation of children of married or formerly married parents ("children of married parents"). Id. at PP 13-14. In contrast, cases concerning paternity, support, custody and visitation of children whose parents have never been married to each other ("children of unmarried parents") cannot be brought in the domestic relations division. Instead, under the Parentage Act of 1984, as amended, Ill. Rev. Stat. ch. 40, P 2501 et seq., cases involving children of unmarried parents must be heard in the municipal department rather than the county department. Id. at P 15. Plaintiffs allege that Judge Comerford enforces this dual system under the General Orders of the Cook County Circuit Court and the circuit court rules. Id. at 1.
Plaintiffs allege that Judge Comerford maintains an overtly discriminatory system that treats children of unmarried parents in a different and unequal manner. The domestic relations division cases and any enforcement or modification actions affecting children of married parents are heard in the Daley Center. Id. at PP 14, 17. In contrast, cases brought in Cook County under the Parentage Act are heard in Parentage Court courtrooms located in or adjacent to Chicago police stations; post-judgment motions for enforcement or modification are heard either in the original Parentage Court courtroom or at 32 West Randolph in Chicago. Id. at PP 16, 18. Plaintiffs explain that the children of married parents enjoy numerous advantages over the children of unmarried parents because of the difference in facilities. See id. at P 19. Plaintiffs allege that this overt discrimination fosters and reinforces the stigma of illegitimacy and violates the equal protection clause of the Fourteenth Amendment.
1. The Motion To Dismiss
A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Assocs., Inc. v. Chicago Housing Authority, 892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990). When considering a motion to dismiss, this court must accept all well-pleaded facts as true, draw all inferences in favor of the plaintiffs, and view plaintiffs' allegations in the light most favorable to them. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). This court will grant a motion to dismiss only if it appears beyond doubt that plaintiffs can prove no set of facts entitling them to relief. Venture Assocs. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir. 1993); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The amended complaint may be dismissed only if plaintiffs plead themselves out of court by alleging facts that show they are not entitled to judgment. Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992).
The motion to dismiss is based on equal protection jurisprudence. Judge Comerford's motion is grounded on the fact that plaintiffs do not allege that he acted with the intent to discriminate against children of unmarried parents. Judge Comerford's argument has two steps: First, he asserts that intent is a necessary element of plaintiffs' equal protection claim. Second, he contends that the exception to the intent requirement is inapplicable here because the alleged overtly discriminatory classification does not involve a suspect class.
Judge Comerford's argument that discriminatory intent is a necessary element of plaintiff's claim is based on his view that the rules classifying children according to the marital status of their parents are facially neutral. He relies chiefly on the equal protection doctrine of Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976), and its progeny. Davis upheld the validity of a written test that was part of the application to the District of Columbia police department even though white applicants passed the test more often than black applicants. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977), upheld a municipal zoning decision to deny a petition to rezone an area from single-family to multi-family use even though single-family zoning tended to perpetuate racially segregated housing patterns. These were facially neutral state policies that were challenged as racially discriminatory and upheld as valid absent proof of discriminatory intent. Similarly, Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979), involved a facially neutral statute: a veterans' preference in civil service positions. In Fenney, the Supreme Court extended Davis to cover gender discrimination cases, holding that the statute was constitutional even though it worked to exclude many women from government jobs. Since illegitimacy, like gender, is analyzed using an intermediate level of scrutiny, see, e.g., Clark v. Jeter, 486 U.S. 456, 461, 100 L. Ed. 2d 465, 108 S. Ct. 1910 (1988) (citations omitted), Judge Comerford argues that the framework set out in Feeney, with an intent requirement, applies to this case. According to this analysis, plaintiffs' failure to allege discriminatory intent is fatal to plaintiffs' claims.
The Feeney analysis does not apply because this case does not involve a facially neutral statute or policy. General Order 1.2 of the Cook County Circuit Court provides:
The Domestic Relations Division hears actions or proceedings concerning dissolution of marriage, legal separation, declaration of invalidity of marriage, custody, actions brought to modify or enforce provisions of order or decrees requiring the payment of maintenance or support, actions commenced under the Uniform Reciprocal Enforcement of Support Act and actions to enforce orders requiring payments from persons legally responsible for the support of persons who are recipients under the Illinois Public Aid Code.