Month: February 2012

Same-Sex Marriage in Illinois

Civil Rights, Family Law

By Erika N. Chen-Walsh

On February 8, 2012, Illinois Representatives Greg Harris, Deborah Mell, Kelly M. Cassidy , and Ann Williams introduced an historic bill, House Bill 5170, entitled the Religious Freedom and Marriage Fairness Act (“HB 5170”).

HB5170 seeks to amend 750 ILCS 75/1 et seq., otherwise known as the Religious Freedom Protection and Civil Union Act (the “Civil Union Act”), which became effective on June 1, 2011.  The Civil Union Act created a new form of legalized relationship in Illinois for which both opposite-sex and same-sex couples were eligible.

Illinois residents should support the passage of HB 5170 into law.  Opponents of same sex marriage argue that marriage should be reserved for heterosexual couples and that the creation of civil union creates a separate, but virtually equal unionization for same sex couples.  History and case law have demonstrated that there is no such thing as separate but equal.  In its holding that the segregation of school children based on race was an unconstitutional violation of the Equal Protection clause, the U.S. Supreme Court held that:

 Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. . .To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
Brown v. Bd. of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 493-94, 74 S. Ct. 686, 691, 98 L. Ed. 873 (1954) supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955) (internal citations omitted).As I have written previously, there is no meaningful distinction between discrimination based on race and discrimination based on sexual orientation.  When equal protection can be denied to one group of people based on discrimination, all of our rights are in jeopardy.Illinois residents should applaud the representatives that introduced HB 5170 and should contact their own representatives and encourage them to support equal protection under the law.

The full text of HB 5170 can be reviewed here:  http://www.ilga.gov/legislation/fulltext.asp?DocName=09700HB5170lv&SessionID=84&GA=97&DocTypeID=HB&DocNum=5170&print=true.

The full text of the Civil Union Act can be reviewed here:  http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3294&ChapterID=59.

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Legislation and Acts of Irresponsibility

Animal Law

By Erika N. Chen-Walsh

In 2009, the Illinois legislature introduced identical bills simultaneously in both the House and the Senate regarding the licensing of dog breeders.  The bills, as proposed, were problematic in multiple ways, ways that would adversely affect all dog breeders and would impose onerous burdens on responsible breeders as well as irresponsible breeders.  In spite of multiple revisions and improvements, neither bill reached the floor for a full vote in either chamber in that legislative session.

Legislation affecting dog breeders is being proposed all over the country right now.   These bills vary dramatically in their specifics.  And there are bills that seek to impact diverse issues regarding dogs, not just dog breeding.  The issues introduced in the Illinois legislature included banning cropping and docking except in the cases of medical necessity, prohibiting the use of gas chamber (carbon monoxide/carbon dioxide) euthanasia except by licensed veterinarians, allowing courts to prohibit contact with animals belonging to protected parties in orders of protection, requiring cross reporting between state agencies investigating child abuse and neglect and animal abuse and neglect, and making it a felony to be a spectator at a dog fight.

Suffice it to say that virtually all breeders responsibly involved in purebred dogs object to laws that are overly burdensome, poorly written and targeted at the wrong breeders.  On the other hand, tougher laws and better enforcement are needed to improve the treatment of animals.  Under current federal law, it is considered humane to keep a dog the size of a Beagle in a cage the size of a dishwasher, and never, ever let it out its entire life.  We need to do better.

There is a bright line between commercial breeders (puppy mills), backyard breeders and responsible breeders.  Within the fancy, there is no bright line test to verify that an individual breeder is ethical and responsible. Not every breeder adheres to the same standards of care, the same scrutiny of puppy buyers, the same rigorous examination of breeding stock, the same willingness to accept dogs back after placement, or the same ability to put the welfare of the dogs produced over financial considerations.

There are dog breeders who are active in their kennel clubs, who show regularly, participate in performance events, finish champions and enjoy all of the prestige that goes along with those activities.  And some of those breeders keep their dogs in cages more than 23 hours per day.  Some of them have more dogs than are permitted in their municipalities so they do not vaccinate for rabies because rabies vaccines must be reported to the county.  I have heard of a prominent breeder of a northern breed in another state who has “euthanasia parties” where she puts to sleep those dogs that are retired from the ring and from breeding.  There are breeders and handlers who perform unlicensed surgeries without anesthesia.

Many breeders fail to adequately socialize their dogs, resulting in dogs that are shy or shy/aggressive to a fault.  In 2007, a Sloughi bit the race secretary at a lure coursing trial so severely that the woman required reconstructive surgery to her hand.

There is the unforgivable ignorance of genetics.  Many dog breeders lack a fundamental understanding of Mendelian genetics.  The superstitious clinging to mythology regarding genetic defects will cause the ultimate demise of some breeds, and breeders who choose to bury their heads in the sand, hoping that Tinkerbell will appear with a healthy dose of fairy dust to wish away genetic diseases and the propensity to bite people may be the worst abusers of all.

Who makes an issue of these people?  Where does the responsibility of each and every breeder to the betterment of his breed require him to give voice for the welfare of the dogs that cannot speak for themselves?  Why do breeders so seldom call their colleagues out on violating the code of ethics of their parent clubs?  Why do they not make criminal complaints when they know or have reason to know about situations of neglect or abuse?  Why is there such pervasive recalcitrance that breeders turn blind eyes to the misdeeds of their friends and acquaintances and the suffering of the dogs in their care?

Dog breeders do not want to be legislated, but as a group, we have failed to police our own.  If dog breeders acknowledged the problems that we all know exist, we could participate in creating solutions to those problems.  We could focus our efforts and the national dialogue on the real offenders, the entities responsible for the most egregious mistreatment of breeding dogs:  puppy mills and backyard breeders.

The solution to eliminating puppy mills is no great mystery.  Stop the sale of puppies in pet stores.  Without pet stores, puppy mills have no clients.  Why aren’t breeders working harder to educate consumers about what is behind pet store puppies?  And why are we not working harder to pressure stores like Petland to follow in the wake of its more ethical competitors, PetSmart and Petco, by voluntarily refusing to sell puppies?

The current movement in the legislatures nationwide has not been hijacked from breeders.  Breeders have been sleeping at the wheel by choosing to remain, at best, reactive, leaving the problems unaddressed, and passing the buck.  If we want to have a voice in proposing solutions, we need to shake off our collective coma, acknowledge the problems that exist, and face them in a frank and productive way.

Tinkerbell is not going to appear with a tonnage of fairy dust to fix this.  We are going to have to step up to the plate ourselves.  Otherwise, we deserve to be legislated with burdensome laws and we will be.

Loving v. Virginia and Thoughts on Gay Marriage

Civil Rights, Family Law

By Erika N. Chen-Walsh

In June 1958, Mildred Jeter, a black woman, married Richard Loving, a white man.  Although the newlyweds were residents of Virginia, they married in the District of Columbia because Virginia had a criminal statute that prohibited interracial marriages between a white person and a person of color in addition to a statutory provision that rendered all such marriages void under the law.

Upon their return to Virginia, the Lovings received a grand jury indictment to which they plead guilty and were each sentenced to one year in prison.  Their sentences were stayed upon the condition that they left the state of Virginia, never to return.  The Lovings moved to the District of Columbia, and in 1963, they filed a motion to vacate the trial court judgment and to set aside the sentences under the Fourteenth Amendment.

The Virginia Supreme Court upheld the constitutionality of the antimiscegenation statutes and upheld the convictions.  The Lovings appealed to the U.S. Supreme Court, which forever changed history when it held as follows:

Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.  To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 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.


Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 1824, 18 L. Ed. 2d 1010 (1967) (Internal citations omitted).

Sadly, here we are in 2012, and same sex marriage is legal in only six states and the District of Columbia (as well as the Coquille Indian Tribe, and the Suquamish Indian Tribe).  There is no meaningful distinction between race discrimination and discrimination based on sexual orientation.

In 1996, then President William Jefferson Clinton signed the Defense of Marriage Act which states in pertinent part that, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

The arguments in favor of same sex marriage are overwhelming.  It is impermissibly discriminatory to allow religious dogma to deny legal rights that our Supreme Court has already held are “fundamental.”  It further seeks to impose religious tenets on all Americans in violation of our rights to reject them.

Allowing same sex marriage does nothing to undermine or diminish the value or sanctity of marriage between heterosexual couples.  To the contrary, establishing and promoting family bonds helps society.

Marriage is an institution that is not only a fundamental freedom on a personal level, it is also a societal institution that helps to strengthen communities, providing in-home caregivers to the infirm, providing family units to share financial obligations and income, and providing two parent households to support children.  These benefits to society are not dependent upon sexual orientation.

In addition, the legalization of same sex marriage would provide an economic boost to the economy. In 2004, a study (.pdf) conducted by the Congressional Budget Office found that if all 50 states and the federal government extended the rights and obligations of marriage to same-sex couples, gay weddings alone would generate almost $1 billion in revenue each year.

A 2011 Gallup poll suggests that 25% of Americans are gay or lesbian.  Religious dogma and bigotry cannot be allowed to deprive 25% of Americans a fundamental freedom.    Those opposed to big government, intrusive government, should support gay marriage because the government has no place in the most personal  relationships of its citizens.  Individuals decide what their families look like and the state has no business interfering with the Due Process Rights and fundamental freedoms of consenting adults.

On this Valentine’s Day, I encourage you to follow the Loving  decision and support same sex marriage.  When fundamental rights can be denied to one class of people based on discrimination, all of our rights are in jeopardy.