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,
DAVID ORR, in his official capacity as COOK COUNTYCLERK, Defendant.
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Plaintiffs, Elvie Jordan, Challis Gibbs, Ronald Dorfman, and Kenneth Ilio (collectively "medically critical plaintiffs"), filed a motion for temporary restraining order and preliminary injunction  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  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.
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.
"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)).
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 ...