Editors’ Note: Richard A. Wilson is a founding member and past-chair (2006-2007) of the Illinois State Bar Association’s Standing Committee on Sexual Orientation and Gender Identity (SOGI), and a partner at Grund & Leavitt in Chicago, concentrating on litigation and appellate practice relating to domestic relations law and legal issues, with particular emphasis on same-sex issues, including domestic partnerships, parentage, custody and visitation, and related concerns and rights of persons in same-sex relationships.

Introduction

On December 1, 2010, the Illinois General Assembly passed SB1716 (HR-1), the “The Illinois Religious Freedom Protection and Civil Union Act” and on January 31, 2011, before a standing room only crowd at the Chicago Cultural Center, Governor Pat Quinn signed the legislation. When it takes effect June 1, 2011, Illinois will join 11 U.S. States and the District of Columbia that now recognize legal unions between same-sex couples; six permit same-sex marriage (Massachusetts, 2004; Connecticut, 2008; Iowa, 2009; Vermont, 2009, New Hampshire (January, 2010) and the District of Columbia (March, 2010) and five provide substantially similar legal protection to same-sex couples in the form of Civil Unions (New Jersey), Domestic Partnerships (California, Oregon, Washington, Maine, Nevada) or Reciprocal Beneficiaries (Hawaii).1 Two states, New York and New Mexico, fully recognize same-sex marriages from other jurisdictions, although they do not permit same-sex couples to marry.2

ISBA was an early supporter of the legislation, and was instrumental in its passage. ISBA SOGI (Standing Committee on Sexual Orientation and Gender Identity), established in 2002, was represented at and participated in discussions as early as 2004, among a broad and diverse coalition of community, social, political and legal groups, in determining both the type of legislation to propose, and strategy in pursuit of its enactment. SOGI actively promoted efforts by the ISBA to endorse the legislation, and, with the assistance countless individuals and key supporters within the ISBA, SOGI sponsored, and obtained, passage—by a substantial margin—of a key vote by the Assembly at the Annual Meeting in Lake Geneva in June, 2007, endorsing the legislation. The ISBA continued to lobby for passage of the Bill until its enactment in December, 2010.

The Act, codified at 750 ILCS 75/1 et seq., is not an amendment to the existing Illinois Marriage and Dissolution of Marriage Act [IMDMA], 750 ILCS 5/101 et seq., but a separate provision of the law that both provides for Civil Unions under Illinois law and incorporates relevant and particular provisions of the IMDMA, where necessary. It permits two persons both at least 18 years of age, without regard to gender, to obtain a civil union with the same rights and benefits afforded to opposite-sex couples under the state’s marriage laws. It formally equates partners to a civil union with “spouses” under all of Illinois law: Section 5 of the Act declares that its primary purpose is “…to provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses” and Section 20 expressly provides that “[a] party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law.” In Illinois parties to a civil union are now to be equated with parties to a valid Illinois marriage, as spouses.

Overview and Key Provisions

The Civil Union Act mandates the same procedures for obtaining, maintaining and dissolving a civil union, and provides the same substantive legal rights, benefits and protections in each of the three stages of the legal relationship—formation, recognition while intact, and dissolution—as is required and provided of marriage under Illinois law. The Act consists of 14 sections3 ranging from formalities of creation, rights and protections in recognition, and dissolution. Substantive rights and interests available to all spouses under Illinois law are many and include, for example, rights to acquire and own property without regard to title; rights to support between spouses; rights of parentage and to children; inheritance rights; and the right of dissolution and equitable division of the estate—alone a significant and welcome leap forward, permitting spouses to obtain the full reach of the law in the division of their estate, the consideration of spousal support, and the provision of care, custody, support and education of their children, where previously such rights and interests were, unlike with recognized married couples, pursued piecemeal, in different courts and based upon title to property and parentage of children, separately and if at all, with no rights of equitable distribution of the estate.

The law contains two significant differences not otherwise available with, or applicable to, marriage under Illinois law: continued jurisdiction of the Illinois courts to dissolve a civil union without regard to the residence of either party, and reciprocal recognition of foreign, same-sex relationships “substantially similar” to a civil union under Illinois law. Section 45 of the Act provides for the continued jurisdiction of the Illinois Courts to dissolve the Union, by consent of the parties, whether or not either or both continue to live in the state: “Any person who enters into a civil union in Illinois consents to the jurisdiction of the courts of Illinois for the purpose of any action relating to the civil union even if one or both parties cease to reside in this State.” Section 60 of the Act expressly provides for reciprocal recognition of foreign same-sex relationships by declaring that “[a] marriage between persons of the same sex, a civil union, or substantially similar legal relationship other than common law marriage, legally entered into in another jurisdiction shall be recognized in Illinois as a civil union.” This provision applies in all three stages of the union—its formation, recognition while intact, and upon dissolution—whether or not the state permits, or recognizes as marriages for purposes of Illinois law, same-sex marriages from other jurisdictions. For purposes of formation, parties to such relationships from other jurisdictions need do nothing more—as with a marriage, no registration or formal declaration is required—and, moreover, because the relationship will be recognized, such persons will be prohibited from obtaining a civil union under Illinois law, equivalent to the prohibition against bigamy under the IMDMA. While the relationship is intact, parties to a foreign, recognized relationship shall also be entitled to all of the rights and benefits accorded to spouses under Illinois law. And upon dissolution, this provision of reciprocal recognition will permit, finally, parties living in Illinois and having lawfully entered into such a relationship in another jurisdiction, to obtain a dissolution—a remedy previously unavailable, where Illinois would not recognize the relationship for any purpose.

The Act is simple, comprehensive, and but for marriage itself, provides and guarantees all of the rights, benefits, and burdens of marriage available under Illinois law. The most significant limitation of the Act—notwithstanding its essential implicit reservation of marriage to opposite-sex parties under Illinois law—is not in its substance but in its application, beyond the reach of Illinois lawmakers: the existence of federal law—the Federal “Defense of Marriage Act,” or “DOMA.”4—which, for purposes of federal law, limits recognition of marriage and spouse to opposite sex couples. DOMA provides 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”5 and permits states to refuse to recognize valid same-sex relationships from other states.6 Although marriage has traditionally been exclusively a matter of state law, federal law nonetheless has unavoidable and considerable impact on parties to a marriage where there are more than 1,138 federal programs, rules and benefits that depend upon or use the term “spouse” resulting in significant and unequal treatment of parties to a marriage, civil union, domestic partnership, or other such substantially similar legal relationship where the relationship is not recognized for purposes of federal law or where substantive rights and benefits accorded by the state attendant upon the relationship conflict with, or are not available, under federal law. This includes everything from federal tax filing status, to any federal program that provides benefits or rights based upon the relationship as a spouse or parent to child, as well as the lack of tax consequences in the division of a marital estate, upon the dissolution of a marriage.

Given the relative legal parity of spouses to a civil union with spouses to a marriage under state law, and the existing limitation of recognition to only opposite-sex, [recognized as] married, spouses under federal law, unavoidable conflicts between state and federal law on these issues are inevitable, and the rights and interests available to parties to a civil union under state law may well cause a significant shift in legal representation of both same- and opposite-sex couples by Illinois lawyers. But notwithstanding the limitations of federal law, it’s clear that Illinois has taken a welcome and substantial leap forward in protecting the rights and interests of same-sex couples under its laws, by providing them with all of the benefits, rights and interests otherwise available to all spouses under state law. The commitment of the ISBA in endorsing and promoting the passage of the Civil Union Act was substantial and critical, and as a founding member of ISBA SOGI, I applaud the Assembly for endorsing the legislation, and the ISBA for its efforts to secure its enactment, as well as and consistent with all of its efforts in promoting diversity and equality among the Bar and throughout the state.

Note: ISBA SOGI is sponsoring a two-hour CLE at the Annual Meeting, on Thursday, June 17, 2011, from 2.00 to 4.15 PM, entitled “A Roadmap to the Illinois Civil Unions Act.” ■

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1. <http://www.lambdalegal.org> (Jan 2, 2011). The list does not include California (May, 2008, repealed November 2008) or Maine, May, 2009, repealed November, 2009). Id.

2. Outside of the United States, ten countries (The Netherlands, Belgium, Canada, Spain, South Africa, Norway, Portugal, Argentina, Iceland and Sweden) permit same-sex marriage, while more than twenty others have enacted comprehensive legislation creating civil unions, civil partnerships or other statuses providing same-sex couples equal or analogous rights to married couples.

3. Section 1, Title; Section 5, Purposes; rules of construction; Section 10, Definitions; Section 15, Religious Freedom; Section 20, Prosecutions, obligations and responsibilities; Section 25, Prohibited Civil Unions; Section 30, Application, license and certification; Section 35, Duties of the county clerk; Section 40, Certification; Section 45, Dissolution; declaration of invalidity; Section 50, Application of Civil Practice Law; Section 55, Venue; Section 60, Reciprocity; and Section 90, Severability. SB 1716.

4. (The “Defense of Marriage Act’), Public Law 104-199 (1996), which permits states to refuse to recognize valid marriages between persons of the same-sex performed in other states, [29 USC 1738] and created a federal definition of marriage for purposes of federal programs and interests, by declaring 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.” [1 USC 7].

5. 1 USC 7 (1996).

6. 29 USC 1738 (1996).