Which isn't really an valid distinction. There are things that are "illegal" that involve only civil penalties, or are proscribed, but have no specific penalties outlined in statute. The existence of criminal penalties isn't a magic wand that creates a distinction between illegality and not-legality, as you're terming them."Illegal" is a term of art that doesn't work the way you're trying to use it. Whether applying the 'separate, but equal' terminology to this debate is appropriate is a fair discussion, but it's also possible to think that the terminology applies while not thinking that Jim Crow "equates" to gay rights or that they comprise the same struggle. They are comparable, though. They're both state-endorsed systems of oppression of minorities, the fact that things like criminalized sodomy have been struck down by the Supreme Court (in 2003 - 40 years after the Civil Rights Act) doesn't invalidate the other ongoing legal oppression that exists when gay marriage is illegal/not legal/whatever term you'd like to use.