On June 23, 2007, the 201 member ISBA Assembly voted to support the “Illinois Religious Freedom Protection and Civil Unions Act” (HB 1826). If the bill becomes law, Illinois would join Connecticut, Vermont, California, and New Jersey as states which have recognized forms of civil unions. Another, Massachusetts, has specifically legalized gay marriage. Though Chicago and some surrounding suburbs have “domestic-partner” registries, inclusion on the registries does not generally provide substantive rights. HB 1826 confers substantive rights and responsibilities on partners who are joined in a “civil union,” which generally parallel the rights and responsibilities of married persons. 

The Illinois Religious Freedom Protection and Civil Unions Act was passed by the House Human Services Committee by a 5-4 vote on March 21, 2007. The next step is consideration by the entire House. The stated purpose of the Act is to allow “committed, adult, same-sex and different sex couples the opportunity to obtain the same obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses.” HB 1826, as introduced, presented three reasons for its introduction. First, it recognized that “marriage” is generally “the exclusive source of numerous protections and responsibilities under the laws of Illinois for parties to a marriage and their children” and therefore same sex couples are denied these rights since they may not legally marry. Second, HB 1826 recognized that many same sex couples have formed “lasting, committed, caring and faithful relationships” which involve living together, serving their communities, and rearing children, without the protections and responsibilities associated with marriage. Third, HB 1826 stated that the Act would support Illinois’ “long tradition of respect for individual rights and responsibilities… and equal protection of the laws.”

The Act generally provides that partners who choose to obtain a civil union would be treated as spouses for purposes of state substantive laws. The original Act included a non-exclusive list of the legal protections which would be offered to partners in civil unions. These included protections under probate law, trust law, property law, adoption law, and family law, including domestic violence. Further, the Act would allow partners to bring lawsuits dependent on spousal status (including wrongful death, emotional distress, and loss of consortium claims). Partners in civil unions would also be protected against discrimination based on marital status under the Illinois Human Rights Act. The Act would provide partners with spousal status as to health insurance, worker’s compensation, public assistance, and health care decision-making. A partner would also be afforded the privilege for marital communications contained in the Code of Criminal Procedure. 

Formation of a civil union would be similar to the formation of a marriage. The Act provides that two persons may form a civil union if they 1) are not related by adoption or blood as specified in the Act, 2) are not in another civil union or marriage, and 3) are at least eighteen years of age. Similar to persons who seek to marry, partners seeking a civil union must obtain a license and participate in a ceremony officiated by a judge, clerk, or a religious officiant. A certificate of the civil union must then be filed with the appropriate clerk of court. The Act also provides that a religious body “is free to choose whether or not to solemnize or not to officiate civil unions.”

Significantly, the Act also provides that a civil union may only be dissolved pursuant to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/501 et. seq. The IMDMA provides the statutory authority for the dissolution of marriage, including the determination of issues such as spousal support, property division, child support and child custody. Thus, partners in a civil union must be “divorced” just as a married couple. 

HB 1826 addresses many concerns. Now, absent such legislative protection, unmarried couples in committed relationships are often left to provide for a partner by constructing a mosaic of protection. They may use reciprocal powers of attorney for property, powers of attorney for health care, trust agreements, and wills. They may exercise great care in the manner in which they hold property, and may also have contractual agreements which specifically govern the each partner’s rights and responsibilities. Those couples with children must consider formal adoptions, guardianships and parenting agreements. Unlike married persons, there are no rights which automatically flow to them simply by virtue of their status as a partner in a committed relationship. 

Without the benefit of any state recognition, when a committed relationship ends, there can be unjust results. Unmarried couples who have lived together and joined finances have advanced theories of implied contract, constructive trust and unjust enrichment in order to recover a share of property accumulated during a relationship. Courts have not been sympathetic to such arguments. Rather, courts have invited, and perhaps encouraged, the legislature to address such situations. For instance, in Hewitt v. Hewitt, 77 Ill.2d 49 (1979), a woman argued that she was “living as” a married couple with a man, and was therefore entitled to an equal share of property which was accumulated by him during the relationship. However, they never were married. The Illinois Supreme Court explained that since common law marriage was abolished in Illinois, the myriad of theories she advanced could not overcome the fact that she was attempting to gain recognition for a common law marriage. The Court relied on an 1882 case holding that “an agreement in consideration of future illicit cohabitation” was void and held that:

The real thrust of plaintiff’s argument here is that we should abandon the rule of illegality because of certain changes in societal norms and attitudes. It is urged that social mores have changed radically in recent years, rendering this principle of law archaic. It is said that because there are so many unmarried cohabitants today the courts must confer a legal status on such relationships. .. Even if we were to assume some modification of the rule of illegality is appropriate, we return to the fundamental question earlier alluded to: If resolution of this issue rests ultimately on grounds of public policy, by what body should that policy be determined?. . . The issue, realistically, is whether it is appropriate for this court to grant a legal status to a private arrangement substituting for the institution of marriage sanctioned by the State. The question whether change is needed in the law governing the rights of parties in this delicate area of marriage-like relationships involves evaluations of sociological data and alternatives we believe best suited to the superior investigative and fact-finding facilities of the legislative branch in the exercise of its traditional authority to declare public policy in the domestic relations field. 

More recently, in Costa v. Oliven, 365 Ill.App.3d 244 (2nd Dist. 2006), an unmarried man who lived with a partner for twenty-four years and cared for the parties’ child sought a constructive trust over all of his partner’s property. The trial court dismissed the complaint, which was affirmed by the appellate court. The plaintiff attempted to overcome the effect of Hewitt by arguing that there had been “subsequent legislative activity and changes in social and judicial attitudes” since the time of the Hewitt decision. The appellate court rejected the argument and relied on a directive from Hewitt: “These questions are appropriately within the province of the legislature, and . . . if there is to be a change in the law of this State on this matter, it is for the legislature and not the courts to bring about that change.” 

Upon the end of a relationship, same-sex couples face additional hurdles, particularly when children are involved. While the law generally provides a means for biological parents to obtain rights to their children, same-sex couples raising children do not necessarily have the same protections. In the case of In re Visitation with C.B.L., 309 Ill. App. 3d 888 (1st Dist. 1999), a lesbian couple who decided to have a child by artificial insemination ended their relationship. The partner who did not carry the child was denied all visitation with the child, despite the fact that she had participated in the preparation for the child’s birth and in raising the child. The court found she lacked standing, but noted that “this court is not unmindful of the fact that our evolving social structures have created non-traditional relationships. This court, however, has no authority to ignore the manifest intent of our General Assembly.” In another case, In re Marriage of Simmons, 355 Ill. App. 3d 942 (1st Dist. 2005), appeal denied, 216 Ill. 2d 734 (2005), a person who was born a female who suffered from “gender identity disorder” began a course of hormone treatments which resulted in achieving the physical appearance of a man. In 1985, he legally married a woman. The couple decided that the wife would undergo artificial insemination. She gave birth to a child, and the husband was listed as the father on the child’s birth certificate. The parties lived together as husband and wife until the child was six years old, when the husband filed for divorce. The court found that the husband lacked standing to seek custody since “same sex marriages” were not legal and the marriage was void ab initio. The court also found that he lacked any parental rights to the child. 

HB 1826 is perhaps the first response to the invitation pointedly made by the Hewitt court. It may be that changes in social mores and current sociological findings have rendered some laws archaic. As discussed in Hewitt, our state legislature, as in other states, has been compelled to address the “delicate area of marriage-like relationships.” So often, laws provide a set of rules to follow when we have disputes with others. Whether a car accident, a leaky roof, or a failed marriage, we look to the law to provide the tools to resolve our dispute in a fair and dignified manner. The current laws fail to provide a suitable framework to govern the most significant of relationships for many members of our society. Perhaps we are well-served to remember the words of William O. Douglas, the longest-serving U.S. Supreme Court Justice: “The search for static security—in the law and elsewhere—is misguided. The fact is security can only be achieved through constant change, adapting old ideas that have outlived their usefulness to current facts.”

As of this writing, HB1826 remains pending. For a further discussion of the rights of unmarried couples, the Women and the Law Committee invites you to attend its program entitled “Legal Implications of Effective Representation of Unmarried Couples.” The program is currently scheduled for the afternoon of Thursday, December 6, 2007 at the ISBA Mid-Year meeting at the Sheraton Hotel in Chicago. The program is co-sponsored by the Minority and Women Participation Committee and the Sexual Orientation and Gender Identity Committee.