Civil unions are usually viewed as a benefit to same sex couples, allowing the parties to legalize their relationship and recognize that they are a couple just like you and me. The Illinois Senate has passed the bill and it has gone up to Governor Pat Quinn for signature. Governor Quinn is scheduled to sign the bill next year. The law could take effect next summer, June 11, 2011. But with this law, Illinois has enacted a law that has widespread effects. The law is called The Illinois Religious Freedom and Civil Union Act. The law was enacted because same sex couples were denied marriage benefits, and there was no compelling state interest or rational basis to deny same sex couples these marriage benefits. The bill particularly mentions that the purpose is not to interfere with religious freedom or beliefs about marriage. The bill will apply equally to same and opposite sex partners (something new) who want to enter into a civil marriage or union. Same sex partners will be called ‘spouse’, ‘immediate family’, and ‘dependent’. This is important because it has implications for divorce, probate law and other domestic relations law. So same sex couples can marry, divorce and have standing in court to sue on these actions. They can also inherit under probate law as a civil union spouse, sue for emotional distress, wrongful death, loss of consortium under Illinois tort law. As spouse, they can apply for insurance benefits – health and accident, be eligible for group insurance in employee insurance plans. Under Illinois tax law, they will be eligible as spouses for taxes and tax deductions as spouses and dependents. Marriage, under the Illinois law, is prohibited between siblings, uncle and nephew, aunt and niece. Because same sex couples are treated as ‘spouses’ under the marriage and divorce law of Illinois, they can now share rights to make end of life decisions, nursing home decisions, transfer of property to spouses, and survivor benefits. Under workers’ compensation rules, ‘spouses’ can claim benefits. Did I say there was something different about this bill? Well, heterosexual couples who do not want to marry, can opt for a civil union and enjoy the same benefits as a married couple would do. Why, you ask? Let us say that a couple is interested in a domestic partnership because they face loss of health insurance and other benefits, or seniors who will lose their social security survivor benefits, pension or income if they remarry, then this bill offers a way out. Seniors can also now have the right to make emergency decisions for their ‘spouse’ under this new law. It recognizes the relationship without the concomitant problems of marriage. So it provides straight couples some legal support but no title of marriage. Employers should review their employee benefits, especially health insurance, and family leave benefits and their compliance with applicable labor laws. Couples who opt for civil unions under this law can also make end of life decisions–they do not have to have powers of attorney to end, for example, a vegetative state. Remember the Terry Schaivo case? They also have the right to make funeral home decisions and take charge of the remains. But these protections are offered only at the state level and have no application at the federal level. Tax law, immigration law and a host of other laws will not recognize these relationships as spouses. I guess you could then claim a ‘spouse’ under the new law as a dependent under state law but not federal law. The federal law, the Defense of Marriage Act, recognizes marriage as a union only between a man and a woman. DOMA does not recognize civil unions even if the union is recognized by the state. This is a legal conundrum because the full faith and credit clause of the US Constitution makes it mandatory to recognize the laws of another state in the Union, and accord foreign state laws equal application and status. But same sex unions or marriages are non-existent in federal law. A United States Citizen or legal permanent resident cannot sponsor a same sex partner of foreign citizenship to live with them in the United States as their ‘spouse’. Same sex marriage was banned in California after Proposition 8 was passed. But on August 4, 2010, a federal district court decided that such a ban violated the Equal Protection clause of the US Constitution. The equal protection clause does not guarantee equality among individuals or classes but only that the laws would be applied equally to all. The question remains for us: are some more equal than others? Is the federal government practicing discrimination by the unequal application of laws, or by denying rights to some? Is this a slippery slope we should not venture on?
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Attorney at Law
Copyright 2011. All rights reserved.
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