Beginning June 1, the Illinois Religious Freedom Protection and Civil Union Act confers most of the rights of marriage on parties to a civil union. But definitions of "spouse" and "marriage" under federal law impose important limits on the new act, requiring special planning for "civilly unioned" couples.
Friday, June 3 "Civil Union Practice Tips" Attend live onsite or via live webcast during CLE Fest Classic - 4 hours MCLE credit
Friday, June 17 "A Roadmap to the Illinois Civil Union Act" during the ISBA Annual meeting - 2 hours MCLE credit
The recently enacted and soon-to-be effective Illinois Religious Freedom Protection and Civil Union Act1 (the "act" or the "Civil Union Act") is a relatively short, relatively simple, and exceptionally comprehensive piece of legislation that creates a status analogous and equal to marriage under Illinois law - without regard to gender - conferring all the rights, interests, benefits and burdens available to spouses without, or short of, marriage itself.
It's called a "civil union." Implicitly promising equality as a matter of state law, under the new act two persons - of either the same or opposite gender and both at least 18 years of age - may elect to enter into a civil union rather than a marriage. And those who do - as well as those who are already married, civilly unioned or united,2 domestically partnered or in some analogous status conferred by the laws of another state or country - will be entitled to all of the recognitions and benefits available under Illinois law to spouses, including that which is arguably the most important if and when the time comes: divorce.
A close reading of the new act reveals that, as to both policy and formation, it is nearly identical to the existing Illinois Marriage and Dissolution of Marriage Act (IMDMA)3 (with few relatively inconsequential exceptions discussed below) and, as to dissolution in appropriate instances, expressly incorporates applicable provisions of the IMDMA. If, as is widely assumed, the primary intent of the new law is to provide same-sex couples with the same rights and benefits afforded to opposite-sex couples under the state's laws,4 it has accomplished just that.
In each "stage" of a civil union - formation, recognition while intact, and dissolution - the procedure by which it is obtained, maintained, and dissolved, including the substantive rights, benefits, and duties and obligations of the parties, differs little from that provided by Illinois law to parties to a marriage. As a matter of statutory construction, there isn't much the act does that the IMDMA doesn't do for those who are able to marry under Illinois law. There appear to be only two differences - one of which is an inherent and likely intended consequence of the new law, and the other an extraneous and unavoidable one, whether contemplated or not.
The first is marriage itself. By creating a separate status equivalent or equal in nearly all respects to marriage, the act nonetheless is separate, and is not and does not provide for marriage, which remains available under Illinois law solely to persons of the opposite sex.5
The second is the pervasive and likely inescapable reach of federal law, specifically, the Defense of Marriage Act ("DOMA").6 The DOMA limits the application of the new act in significant ways, both by restricting the use and definition of "spouse" under federal law to two persons of the opposite sex and by permitting states to refuse to recognize same-sex marriages from other states. This produces a conflict between state and federal law where benefits, rights and interests of spouses - in areas such as taxation, social security, retirement or health care benefits from employer plans governed by federal law, immigration benefits, and the like - depend upon the marital relationship, the federal designation of spouse, or both.
This article examines the new law, which takes effect June 1, 2011,7 in both contexts: first, its structural elements and application as a matter of state law, using marriage and dissolution (the IMDMA) as the measure; and second, the inherent conflicts or limitations in its application in all respects, specifically the unavoidable and significant impact of federal law on the union both while intact and upon dissolution.
This article considers both questions in the context of each of the three aspects of the legal relationship critical to the practitioner: The nuts and bolts of formation of a civil union; the rights, interests, and obligations of a couple who has obtained a valid civil union or a relationship entitled to reciprocal recognition; and a practical guide to dissolution.
An overview of the Civil Union Act
Generally. The Civil Union Act consists of 14 sections ranging from formalities of creation, rights and protections in recognition, and dissolution. Three provisions of the act are particularly significant.
First is the equation - or elevation - of a party to a civil union to the equivalent status of spouse "entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses…"8 in section 20. Second is the incorporation of the IMDMA for purposes of dissolution or declaration of invalidity of a civil union, in section 45. Third is the reciprocity provision, section 60, which recognizes same-sex relationships, "legally entered into" in other jurisdictions, that are "substantially similar" to a civil union in Illinois.
Formation. Assuming the parties meet the age threshold of 18 and the union is not otherwise prohibited, the manner in which a civil union is obtained or entered into is, as a matter of law, no different from a marriage. A civil union may be performed (solemnized and "certified") by the same specified officials permitted to do so under the IMDMA9 - a judge in most instances, and in others, a county clerk or other officiant permitted by law.10
One difference between IMDMA and the civil union law is found at section 35 of the act ("Duties of the county clerk"), which enumerates duties and obligations of the clerk that are to be adhered to after application. Sub-paragraphs (b) and (c) of section 35 are pro forma and consistent with similar provisions for registration of a marriage under the IMDMA.11 The other two, however - subparagraphs (a) and (d) - have no parallel provision in the IMDMA.
The first, subparagraph (a), is not otherwise explained in the act or elsewhere, and requires that
[(a)] [b]efore issuing a civil union license to a person the county clerk shall satisfy himself or herself by requiring affidavits or otherwise that the person is not prohibited from entering into a civil union or substantially similar legal relationship by the laws of the jurisdiction where he or she resides.12
This provision places a duty on the county clerk to determine the legal sufficiency of another jurisdiction's "substantially similar legal relationship." This may or may not be as simple as the similar duty of a clerk issuing a marriage license under the IMDMA, where he or she must obtain "satisfactory proof that the marriage is not prohibited."13 The last, subparagraph (d), makes it a "petty offense" for "any official" who "issu[es] a license with knowledge that the parties are thus prohibited from entering into a civil union."14
The act contains no other requirements for formation of a civil union.
Recognition. A civil union obtained in Illinois under the act, as well as any "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" are to be recognized as civil unions in Illinois.15 Because legal rights are implicated both in the pursuit of recognition for the relationship while intact - or for benefits based upon the status of the relationship - and also in the pursuit of rights and remedies by the parties against one another, or by third parties, upon dissolution16 and, frankly, because not all relationships end in dissolution, it is important to consider the rights and interests of the parties to a civil union in the relationship while it is intact.
To obtain reciprocal recognition, parties to valid same-sex marriages, civil unions, or "substantially similar legal relationship[s] other than a common law marriage, legally entered into in another jurisdiction" need do nothing further under Illinois law. In fact, they are prohibited from obtaining a civil union under the new act.17 There is no legal requirement for a party to a foreign, recognized relationship to take any affirmative act in Illinois to have that relationship formally certified, recognized, or otherwise acknowledged.
Specific rights and protections of recognition are not enumerated in the new act. Neither are they found, for the most part, in the comparable provisions of the IMDMA. The act accomplishes its provision of rights and interests by equating, without exception, the status of "party to a civil union" to a spouse under Illinois law.
Any plain reading of the act leads to the conclusion that it enables parties to a civil union to claim a right or interest wherever the word "spouse" or similar marital partner designation appears in Illinois law. This arguably includes, to name but a few, the right to acquire and own property jointly18 - including tenancy by the entireties - the right of access to and to make decisions on behalf of the other spouse in medical contexts, rights to automatic inheritance, rights as a spouse to state-sponsored (non-federal) or administered health care benefits, and rights to spousal privileges in court including the freedom from compelled testimony.
It also applies to the presumption of parentage and right to recognition of a child as a child of the civil union to both parties jointly, along with other rights, benefits, protections, and burdens both while the relationship is intact and on dissolution, including division of the estate, spousal support, and contribution to fees.19
Dissolution. As with marriage, the legal rights and interests to parties to a civil union will be determined mostly in dissolution. With the enactment of the act, couples who obtain a civil union in Illinois will be able to dissolve it in Illinois - or elsewhere, by express consent to the jurisdiction of Illinois courts under section 45 (see below) - and same-sex couples from other jurisdictions who can establish residency in Illinois may now obtain a dissolution of their marriage, civil union, domestic partnership or similarly recognized legal relationship.20 This single change in the law provides for the first time the right to divorce otherwise available to all who marry, along with the attendant right to equitable division of property without regard to title.
The undoing of a civil union is, as with marriage under Illinois law, accomplished either by dissolution or a declaration of invalidity. Both are provided for under section 45, which states in full as follows:
Section 45. Dissolution; declaration of invalidity. 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.21 A court shall enter a judgment of dissolution of a civil union if at the time the action is commenced it meets the grounds for dissolution set forth in Section 401 of the Illinois Marriage and Dissolution of Marriage Act. The provisions of Sections 401 through 413 of the Illinois Marriage and Dissolution of Marriage Act shall apply to a dissolution of a civil union. The provisions of Sections 301 through 306 of the Illinois Marriage and Dissolution of Marriage Act shall apply to the declaration of invalidity of a civil union.22
The act provides for the same procedural steps to obtain a dissolution of a civil union as a divorce. Process and procedure are governed by both the Illinois Civil Practice Act, incorporated into the new act in section 50,23 and the IMDMA.
The only apparent difference is the name of the action: i.e., "[a] proceeding for dissolution of a civil union or declaration of invalidity of a civil union shall be entitled 'In re the Civil Union of … and …'."24 As with marriage under the IMDMA, the act provides that "[t]he initial pleading in all proceedings under this Act shall be denominated a petition. A responsive pleading shall be denominated a response. All other pleadings under this Act shall be denominated as provided in the Civil Practice Law."25
Although it isn't mentioned in the act, a dissolution will likely be known as a "Judgment for Dissolution of Civil Union," much like its counterpart, a "Judgment for Dissolution of Marriage."
Because Illinois law previously would not26 permit residents of the same sex to marry,27 recognize their relationships if they chose to do so elsewhere,28 or recognize same-sex relationships from other jurisdictions,29 Illinoisans in failed same-sex relationships legally entered into in other jurisdictions were left with few legal protections and difficult choices. Even if they amicably parted, they could not obtain a "dissolution" or "divorce" and lacked a forum before which they could have all of their rights and interests - to property and to children - adjudicated.
A simple example of the benefit of the new law in this context is division of property. Since the reform of Illinois' marriage laws in the 1970s, the law moved from dissolution and the apportionment of marital property based upon fault to equitable division without regard to fault or, for the most part, relative financial contribution.
Thus, for example, under the IMDMA, property acquired after the date of the marriage is presumed to be marital property30 and vests in the marital estate upon the commencement of dissolution proceedings,31 without regard to title.32 Upon dissolution, all marital property is equitably divided between the parties, without regard to who acquired it or in whose name title is held, with few exceptions.33 Under the act, parties to a dissolution of a civil union are now entitled to the same treatment.34
Conflicts with other jurisdictions
Other states. But for the reservation of "marriage" to persons of the opposite sex, the only limitations of the new Illinois law will be in its application. This arises on two levels. The first is where the status is not recognized by another state or similar governmental entity (a typical example being the assertion of spousal rights in another jurisdiction while, for example, traveling). The second is where the fundamental status - "spouse" under Illinois law - itself is wholly at odds with the definition of "spouse" under federal law, limiting rights and interests to a party to a civil union in federal benefits and obligations, and creating a conflict between state and federal law based solely upon gender.
The new act expressly provides in section 45 that "[a]ny 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." This provision will allow parties access to Illinois courts for the purposes of dissolving their civil union should they live in a jurisdiction where they could not otherwise do so.
Beyond that, Illinois law does little if anything to address the refusal of other jurisdictions, in particular the federal government, to recognize its grant of a civil union. Thus, to be truly protected, clients need to continue securing rights to inheritance through powers of attorney, wills, and trusts; to children through legally recognized parentage independent of the relationship (e.g., adoption or surrogacy); and to property by title. The piecemeal pursuit of securing of rights will and must continue until and unless uniform recognition occurs.
The Defense of Marriage Act. Enacted in 1996, the Defense of Marriage Act was the federal government's first enactment of substantive law pertaining to marriage, which had historically been (and continues to be) otherwise a matter of state law.35 The DOMA contains two provisions. The first prohibits the recognition of same-sex relationships under federal law, where it expressly 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."36 The second permits states to refuse to recognize same-sex relationships from other states.37
The impact on same-sex couples is profound. Recent estimates have concluded that over 1,138 federal rules and benefits use the term "spouse."38 Federal law governs everything from tax filing status (and calculation of tax rates and amounts, where state tax filings are derivative of federal return) to benefits for spouses based upon retirement or disability, or, in the context of employment, health insurance where an insured employee must pay taxes on the coverage of his or her spouse.
Thus, where the DOMA expressly limits federal recognition and provision of such benefits as a matter of federal law to "spouses," none of these benefits is available to same-sex spouses legally married or in valid, recognized same-sex relationships under state law or the laws of other jurisdictions. Under the DOMA, married same-sex couples, or those in civil unions, may also not avail themselves of, e.g., immigration sponsorship available to married Americans with foreign spouses, social security survivor benefits, or benefits from pensions or retirement plans governed by federal law.
Federal employees are not entitled to spousal benefits where the spouse does not meet the definition of the DOMA. The provision of domestic partner or spousal benefits not recognized under federal law results in taxation to the employee, which is not taxable to employees who have opposite sex spouses.
Finally and importantly, the long-established rule is that the division of the marital estate incident to a divorce is not taxable to either party.39 But the DOMA will not allow such a benefit to same-sex couples upon dissolution. The same is true of maintenance and spousal support, both taxable to the payee under Illinois and federal law, allowing the payor to declare a deduction. Consequently, practitioners should be aware that parties to a civil union will be entitled to maintenance but will have unequal tax treatment under federal law.
Parentage and the Civil Unions Act
Like the IMDMA, the new act makes no specific provision for parentage. Obviously, one need not be married to be a parent.
There are two important points here for parties to a civil union. First, in Illinois - as in all states - a child born to a married couple is presumed to be a child of the marriage40 and each party to the marriage is presumed to be a parent. Otherwise, parentage must be established by such means as adoption41 or surrogacy.42
Second, Illinois does not recognize claims of intended parentage, including claims of de facto or psychological parentage.43 Only a parent may legally act on a child's behalf, and only a parent has standing to bring or maintain an action for custody, control, education, support,44 or indeed any action of any kind pertaining to a child against an existing, present parent.45
Given the open questions of recognition both within the state and (because of DOMA) beyond, you should advise a client who is a party to a civil union to obtain a determination of parentage as to any child of the relationship in any case.46 This is most easily accomplished by adoption.
The new Illinois Civil Union Act grants same sex couples the legal right to the full benefit of Illinois law available to spouses in the recognition, protection, and where necessary, dissolution of their relationships without regard to gender of the parties or whether or not either resides in Illinois.47 For purposes of state law, a civil union is equal to marriage in nearly every respect but for gender.
Parties to a civil union enjoy the same legal protections, benefits, and burdens the state affords to married spouses - both while their relationship is intact and, as importantly, if and when it dissolves.48
Traditional legal advocacy on behalf of same-sex couples has included sophisticated estate planning and other legal constructs to secure rights and interests to property and to children by and between unmarried persons. After the law takes effect, the legal emphasis will shift. Parties will need advice about how to protect their rights in light of both the new state law and the limitations imposed by federal law, particularly DOMA. At presstime, challenges to DOMA were pending in three U.S. circuit courts,49 and the Obama Administration has announced that it will no longer defend - but will continue to enforce - section 3 of DOMA.50 Nonetheless, the law remains effective and must be taken into account.
Richard A. Wilson <firstname.lastname@example.org> is a founding member and past-chair of the Illinois State Bar Association's Standing Committee on Sexual Orientation and Gender Identity (SOGI), and a partner at Grund & Leavitt PC in Chicago, concentrating on litigation and appellate practice relating to domestic relations law, with particular emphasis on same-sex issues. He thanks Adam C. Kibort, an associate at Grund & Leavitt, for his invaluable assistance and advice.
The Illinois civil union law is different from most other states' in that it's available to opposite-sex partners who choose not to marry - i.e., it is not limited to same-sex couples.
Thus, civil unions may be a boon to seniors in Illinois who have avoided remarriage after the death of a spouse or after a divorce, fearing the loss of social security benefits based on a former spouse's earned quarters. Since the federal government will not recognize civil unions in Illinois (see accompanying article), an opposite-sex couple may use a civil union to assure the partner is allowed in Illinois to make medical decisions in hospitals, nursing homes, hospice facilities, and the like.
The partner will be treated like a spouse for inheritance as well. As long as the federal government does not recognize an Illinois civil union, members of the couple should suffer no loss of the social security benefits they get through a former spouse.
The parties to a civil union may have all elements of a marriage ceremony incorporated into the civil union ceremony performed by clergy. A sitting or retired judge may also perform the civil union ceremony.
Senior couples and others can take advantage of this new legislation in more ways than the sponsors may have anticipated. But as those in other civil union states have learned and the accompanying article shows, a civil union is not identical to a marriage and its benefits are not universally recognized. Congress could act at any time in the future to give recognition to civil unions and change the dynamics regarding federal benefits. But for now, civil unions remain a useful option for under the right circumstances.
- By Michael S. Jordan
Michael S. Jordan, a retired Cook County Circuit Court judge, does business as Mediation & Arbitration Services. He is a former editor-in-chief of the Illinois Bar Journal.
1. Governor Pat Quinn signed the bill January 31, 2011; PA 096-1513 (eff 6-1-11), codified at 750 ILCS 75/1 et seq.
2. There is no generally-accepted verb for either the present or past tense of the act of obtaining a civil union; unlike "to marry," or "married" any number of verb forms of "union" have been used, such as "to unite" or "to unite civilly" and "civilly-unioned," "civilly-united," and even "civilly-unionized."
3. IMDMA, 750 ILCS 5/101 et seq.
4. The act followed earlier introduction, in 2007, of a same-sex marriage bill, which failed in committee.
5. 750 ILCS 5/201 ("A marriage between a man and a woman licensed, solemnized and registered as provided in this Act is valid in this State.").
6. Public Law 104-199 (1996), which, on the one hand "permits" states to refuse to recognize valid marriages between persons of the same-sex performed in other states (29 USC 1738), and on the other 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).
7. Enacted December 1, 2010, as SB1716 (HR-1), and sent to Governor Pat Quinn on December 17, 2010. The bill was originally introduced February 24, 2009, as HB2234 (Harris, et al), after an earlier version, HB1826, also sponsored and introduced by Representative Greg Harris (D-Chicago) on February 23, 2007, failed to pass the Illinois General Assembly. http://www.ilga.gov/legislation.
8. "…whether they derive from statute, administrative rule, policy, common law or any other source of civil or criminal law." Act, § 20.
9. 750 ILCS 5/209 (Solemnization and Registration).
10. Act § 40. (Certification).
11. See 750 ILCS 5/210.
12. Act, § 35(a) (emphasis added).
13. See 750 ILCS 5/203. Under § 203 of the IMDMA, the clerk must determine that "satisfactory proof" exists that the parties to the marriage are of the minimum age or have otherwise met the exceptions provided (750 ILCS 5/203(1) and 203(3)); and that the marriage is not prohibited" (750 ILCS 5/203(2)), but makes no further provision as to what means the clerk is to use to determine that the "proof" is "satisfactory."
14. Act § 35(d).
15. Act, § 60 (Reciprocity).
16. See, for example, Richard A. Wilson, The State of the Law of Protecting and Securing the Rights of Same-Sex Partners in Illinois Without Benefit of Statutory Rights Accorded Heterosexual Couples, 38 Loyola U Chi L J 323, 324 (2007).
17. Act, § 25(2). "[A] civil union entered into prior to the dissolution of a marriage or civil union or substantially similar legal relationship of one of the parties" is prohibited.
18. Under the IMDMA, property acquired by either party after the date of the marriage is presumed to be marital property, the marital estate vests upon the filing of a petition for dissolution of marriage, and such vesting terminates upon the entry of a Judgment for Dissolution of Marriage. 750 ILCS 5/503(a) ("For purposes of this Act, 'marital property' means all property acquired by either spouse subsequent to the marriage, except the following, which is known as 'non-marital property'....).
19. But see below, discussion of parentage under the new act.
20. Act, § 60.
21. The term "any action relating to the civil union" is not otherwise defined in the statute. This sentence, read in its entirety, might imply, for example, that persons who obtain an Illinois civil union may be able to obtain a dissolution of the civil union irrespective of whether either, or both, lives in Illinois. The statute is not clear. It does expressly state that the court "shall enter a judgment of dissolution of a civil union if at the time the action is commenced it meets the grounds for dissolution set forth in Section 401" of the IMDMA, which grounds expressly include the requirement that "…if at the time the action was commenced one of the spouses was a resident of this State or was stationed in this State while a member of the armed services, and the residence or military presence had been maintained for 90 days next preceding the commencement of the action or the making of the finding…" 750 ILCS 5/401(a).
22. Act, § 45. The substantive provisions of the IMDMA, for example, 750 ILCS 5/501 et seq, including without limitation, Temporary Relief § 501; Agreements § 502; Division of Property § 503; Maintenance § 504; Child Support § 505; Attorneys' Fees § 508; Custody § 601 et seq, are incorporated through § 45 which expressly provides that "…[t]he provisions of §§ 401 through 413 of the Illinois Marriage and Dissolution of Marriage Act shall apply to a dissolution of a civil union." § 401(b) of the IMDMA, 750 ILCS 5/401(b), provides that "[j]udgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property," and the grant of full rights and interests under § 20 which 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."
23. Act, § 50: "Section 50. Application of the Civil Practice Law. The provisions of the Civil Practice Law shall apply to all proceedings under this Act, except as otherwise provided in this Act."
25. Id. And § 55 governs venue: "Section 55. Venue. The proceedings shall be had in the county where the petitioner or respondent resides or where the parties' certificate of civil union was issued, except as otherwise provided herein, but process may be directed to any county in the State. Objection to venue is barred if not made within such time as the respondent's response is due. In no event shall venue be deemed jurisdictional." Act, § 55.
26. These provisions of the IMDMA have neither been addressed nor expressly repealed by the new Act.
27. 750 ILCS 5/212(a)(5) (inclusion of "a marriage between two persons of the same sex" in the list of prohibited marriages under Illinois law; see also 750 ILCS 5/213.1 ("[a] marriage between 2 individuals of the same sex is contrary to the public policy of this state.").
28. 750 ILCS 5/216, which declares void marriages by state residents obtained elsewhere if not permitted under Illinois Law.
29. 750 ILCS 5/212(a)(5); further, § 213 of the IMDMA provides for a presumption of validity of marriages duly contracted elsewhere, "except where contrary to the public policy of this State." 750 ILCS 5/213 (emphasis added), and the specially created, sole public policy exception to otherwise valid marriages in the IMDMA follows immediately, in § 213.1, which declares that "A marriage between two individuals of the same sex is contrary to the public policy of this State." 750 ILCS 5/213.1
30. 750 ILCS 5/503(b)(1).
31. 750 ILCS 5/503(e).
32. 750 ILCS 5/503, with certain exceptions for non-marital property.
33. See generally 750 ILCS 5/503.
34. Act, § 45: "…The provisions of §§ 401 through 413 of the Illinois Marriage and Dissolution of Marriage Act shall apply to a dissolution of a civil union." § 401(b) of the IMDMA provides that "Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property." 750 ILCS 5/401(b).
35. The federal decisions including for example, Loving v Virginia, 388 US 1 (1967), Zablocki v Redhail, 434 US 374 (1978), Turner v Safley, 482 US 78 (1987); and Reynolds v United States, 98 US 145 (1879), were federal constitutional questions and challenges based upon federal review of state law[s] on marriage.
36. 1 USC 7 (1996).
37. 29 USC 1738 (1996).
38. "In January 1997, the General Accounting Office issued a report clarifying the scope of DOMA's effect. It concluded that DOMA implicated at least 1,049 federal laws, including those related to entitlement programs, such as Social Security, health benefits and taxation, which are at issue in this action. A follow-up study conducted in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status." Gill v Office of Personnel Management, 699 F Supp 2d 374 (D Mass 2010).
39. 26 USC 1041. The rationale of the rule is based solely on the determination that because property acquired during a marriage vests in the marital estate, or community and not in either party, its division upon dissolution between the parties results in no sale, and therefore no taxable event. There is no gender specificity to the rule and, but for DOMA, it would apply equally to all parties to a dissolution.
40. 750 ILCS 45/5(a)(1) and (a)(2).
41. Available in Illinois without regard to marital or other status, or sexual orientation, In re KM , 274 Ill App 3d 189, 205, 653 NE2d 888, 899 (1st D 1995) (expressly holding the Illinois Adoption Act, 750 ILCS 50/1 et seq, "must be construed to give standing to the unmarried persons in these cases, regardless of sex or sexual orientation, to petition for adoption jointly.")
42. 750 ILCS 47/1 et seq (The Illinois Gestational Surrogacy Act); or other legally recognized means such as a Voluntary Acknowledgment of Paternity, 750 ILCS 22/316(j).
43. And a party asserting such claims is likely to lose. See, for example, In re CBL, 309 Ill App 3d 888, 723 NE2d 316 (1st D 1999) (unmarried person asserting right to visitation lacked standing under visitation statute, 750 ILCS 5/607, absent legally cognizable claim of parentage).
44. Except in limited, enumerated circumstances where a parent is not present. See, for example, 750 ILCS 5/601.
45. The legal definition of parent for such purposes is set forth in § 601 of the IMDMA. 750 ILCS 5/601 (Jurisdiction - Commencement of proceeding).
46. This is particularly useful advice as to portability, as well; parentage is a judgment entitled to full faith and credit - notwithstanding the DOMA, which speaks to marriages and not parentage. See, for example, Finstuen v Crutcher, 496 F3d 1139, 1156 (10th Cir 2007) (holding that "final adoption orders and decrees are judgments that are entitled to recognition by all other states under the Full Faith and Credit Clause [of the U.S. Const Art. IV, § 1]. Therefore, Oklahoma's adoption amendment [Okla Stat tit 10, § 7502-1.4(A)] is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples."
47. Act, § 45 (Dissolution; declaration of invalidity) begins with a statement of consent to reservation of jurisdiction, for purposes of dissolution, in Illinois: "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."
48. Although the act here mandates recognition by type of relationship, it does not restrict its application to residents alone. Neither does it define when reciprocity is warranted or limit it to dissolution, for example; presumably, any person in such a relationship is entitled to the same protections and benefits available whether or not they reside in Illinois, or are seeking a dissolution of the relationship.
49. Gill v Office of Personnel Management, 699 F Supp 2d 374 (D Mass 2010); Pedersen v Office of Personnel Management, No 3:10 CV 1750 (D Conn 2010); Commonwealth of Massachusetts v US Dept of Health and Human Services, 698 F Supp 2d 234 (D Mass 2010); Dragovich v US Dept of the Treasury, No 10-01564 CW (ND Cal 2011), 2011 WL 175502; and Windsor v US, No 10 CV 8435 (SDNY 2010).
50. See, for example, Adam Liptak, The President's Courthouse, New York Times 5, February 27, 2011, sec WK. The official position of the administration was that it had concluded that classifications based solely on sexual orientation are inherently suspect and subject to strict scrutiny. 2011 WLNR 3827856.