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August 2014Volume 102Number 8Page 384

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Family Law

Same-Sex Marriage Comes to Illinois

The law legalizes same-sex marriage, leaving in place the Civil Union Act and providing for voluntary conversion of civil unions to marriages, among other important changes. Here's a review of key provisions and some unanswered questions.

Same-sex marriage has come to Illinois. On November 5, 2013, the Illinois House passed the Illinois Religious Freedom and Marriage Fairness Act (the "Act").1 Governor Quinn signed it 15 days later, and the Act took effect June 1, 2014.2

Promising full marriage equality in Illinois as a matter of state law, the Act legalizes same-sex marriage, leaves in place the Civil Union Act,3 and provides for voluntary conversion of civil unions to marriages. Also - and remarkably - it grants the continuing jurisdiction of the Illinois courts to a same-sex marriage, which is discussed in more depth below.

The Act mandates absolute protection for freedom of religious practice and certain protections and immunity from suit on grounds consistent with religious belief. Finally, it repeals the same-sex marriage prohibitions enacted in 1996, which lingered in the Illinois Marriage and Dissolution of Marriage Act (IMDMA)4 and went untouched by the passage of the Illinois Civil Union Act three years ago.

In last year's ruling in United States v. Windsor, the U.S. Supreme Court struck down section 3 of the federal Defense of Marriage Act (DOMA), which barred federal recognition of same-sex marriage. In so doing, it reaffirmed the exclusive authority of the states to determine who may marry, subject only to fundamental federal constitutional guarantees.5 The decision in Windsor has led to full federal recognition of same-sex marriages that are valid where celebrated, regardless of whether the state where the parties reside recognizes same-sex marriage.

These two fundamental changes, one in state law and one in federal, have made same-sex marriage fully legal and fully available in Illinois. But the passage of the Act alone would not have achieved the same result if DOMA still barred federal recognition of lawful marriages.

This Article will discuss the new Act and its consequences for Illinois law, particularly on marriage, civil unions, and their equivalents. It reviews the Act's key provisions, its amendments to both the Illinois Marriage and Dissolution of Marriage Act and the Civil Union Act, and specific, albeit few, limitations and questions raised by the Act.

An overview of the Act

Effective just three years ago, the Civil Union Act promised full equality with marriage in every respect but the name.6 For same-sex couples, that promise was impaired not only by its separate-but-equal status but, critically, by federal nonrecognition under DOMA and the unavoidable reach of federal law in recognizing state determinations of marriage and its equivalents.

With the passage of the new Act, the legislature has cured the first problem by extending the right to marry to all, regardless of gender. The U.S. Supreme Court has cured the other - at least and for now only as to marriages (see sidebar) - by voiding section 3 of DOMA.

The new Illinois Religious Freedom and Marriage Fairness Act is simple in both form and substance. Its primary purpose is "to provide same-sex and different-sex couples and their children equal access to the status, benefits, protections, rights and responsibilities of civil marriage."7 It achieves that not by creating a substantive, separate law but largely by amending existing law, both the IMDMA and the Civil Union Act. That begins with the Act's simple repeal of the opposite-gender restrictions contained in section 201 of the IMDMA, replacing the threshold requirement for marriage in Illinois as between "a man and a woman" with "2 persons."8

The Act enables same-sex couples to marry and recognizes same-sex marriages celebrated here and elsewhere as equal to all marriages under all of Illinois law.9 It does not repeal the Civil Union Act or mandate automatic conversion of civil unions to marriages. Instead, it provides for conversion only by affirmative act and without cost, either by marrying or, for a year only, by merely applying.

It declares the rights of religious and certain other groups to be free from solemnizing marriages inconsistent with belief or practice and provides immunity from suit, including certain facilities of such groups or certain private clubs otherwise also immune under certain provisions of the Illinois Human Rights Act. It repeals prohibitions in the IMDMA against same-sex marriages and the recognition of them from other jurisdictions, enacted in 1996.

Finally, the Act also provides for continuing personal jurisdiction of the Illinois courts for all purposes by the automatic, if implicit, consent of the parties. That consent is obtained merely by entering into a same-sex marriage, whether or not either of them resides, or has ever resided, in Illinois.

Key provisions of the Act

The Religious Freedom and Marriage Fairness Act consists of 10 sections addressing formalities of creation, rights and protections in recognition, and dissolution. They include the following.

Title. The first section is the "Short title," which states that the "Act may be cited as the Religious Freedom and Marriage Fairness Act."10

Purpose and scope. Section 5 sets forth the underlying purpose of the Act:

Section 5. Purposes, rules of construction. This Act shall be liberally construed and applied to promote its underlying purpose, which is to provide same-sex and different-sex couples and their children equal access to the status, benefits, protections, rights and responsibilities of civil marriage. Nothing in this Act is intended to abrogate, limit, or expand the ability of a religious denomination to exercise First Amendment rights protected by the United States Constitution or the Illinois Constitution nor it is intended to abrogate, limit, or expand the Illinois Human Rights Act or the Religious Freedom Restoration Act.11

Private clubs. Section 7 of the Act provides for exemptions for private clubs to the extent they are also exempt under the Illinois Human Rights Act.

Equal access to marriage. Section 10 of the Act formally equates parties to same-sex marriages and their children with parties to opposite-sex marriages under Illinois law. Subparagraph (a) declares that all laws of the state apply equally to marriages of same-sex and opposite-sex couples and their children; subparagraph (b) specifically equates parties to and children of same-sex marriages with those of opposite-sex marriages; subparagraph (c) equates "definition or use of" terms "that refer to or denote the spousal relationship" with all such terms "used throughout the law, regardless of whether the parties to a marriage are of the same or different sexes"12 and subparagraph (d) mandates that federal law adopted by, referred to, or relied upon by the state be consistent with state determinations on marriage.

Religious freedom. Section 15 is an explicit and unqualified guarantee of freedom of religious practice, declaring that "[n]othing in this Act shall interfere with or regulate the religious practice of any religious Group. Any religious denomination or Indian Nation or Tribe or Native Group is free to choose which marriages it will solemnize or celebrate."13

Severability. Section 20 provides that "[i]f any part of this Act or its application to any person or circumstance is adjudged invalid, such adjudication or application shall not affect the validity of this Act as a whole or of any other part."14

Amendments to the Illinois Marriage and Dissolution of Marriage Act

Section 905 of the Act amends the IMDMA to revise gender-specific provisions both in the formal requirements for marriage (section 201) and in solemnization and registration (section 209), adds religious protections consistent with those in the new Act applicable to all marriages (section 209), amends the list of prohibited marriages to reflect the gender changes in the new law and to remove same-sex marriage from the list (section 212), and adds an automatic consent to continuing, personal jurisdiction provision to the IMDMA, but applicable only to same-sex marriages (new section 220).

Formalities. Section 201 of the IMDMA ("Formalities") is amended by substituting "2 persons" for "a man and a woman" as a threshold, formal requirement for a valid marriage.15

Solemnization and registration. Section 209 of the IMDMA ("Solemnization and registration") is amended by adding, in subparagraphs (a) and (b), the pronoun "her" to existing language using "his" and "him" respectively ("his or her religious denomination" and "believed him or her to be so qualified") and by adding new subparagraphs (a-5) and (a-10), to extend religious exemptions of the new Act to the entire IMDMA. Subparagraph (a-5) exempts religious or other persons (members of Indian nations or tribes), or others, "acting as a representative of a religious denomination or Indian Nation or Tribe or Native group" from being required to perform any marriage, and exempting them from any "civil, administrative or criminal penalty, claim or cause of action" for refusal to solemnize a marriage on religious or other basis. Finally, subparagraph (a-10) exempts religious facilities from performing a "solemnization ceremony" or accommodating a "celebration associated with the solemnization of a marriage if the solemnization ceremony or celebration associated with the solemnization ceremony is in violation of its religious beliefs," defines what types of "religious facilities" are and are not exempt, and provides immunity from "any civil, administrative, criminal penalty, claim or cause of action based on its refusal to provide" its facilities for such purpose.16

Prohibited marriages. Section 212 of the IMDMA ("Prohibited marriages") is amended in subparagraph (a)(1) to add "civil union or substantially similar legal relationship" among the list of existing relationships barring marriage if not dissolved, and replacing in subparagraph (a)(2) the existing prohibition against marriage between a "brother and sister" with "siblings." It also amends in subparagraph (a)(3) the prohibition of marriages between an uncle and niece and between an aunt and nephew to add those between and uncle and nephew and an aunt and niece, respectively.17 Finally, subparagraph (a-5) is amended to remove "a marriage between 2 individuals of the same sex" from the list of prohibited marriages.18

Public policy. Section 213.1 of the IMDMA ("Same-sex marriages; public policy"), which declares that same-sex marriages are contrary to the public policy of the state, is repealed by section 910 of the Act.

Continuing jurisdiction. Section 220 is added to the IMDMA to provide for automatic consent to the jurisdiction of the Illinois courts for any purpose by parties who enter into a same-sex marriage in this state, "even if one or both parties cease to reside in this state." It also provides that a judgment for dissolution shall be entered "if at the time the action is commenced, it meets the grounds for dissolution set forth in this Act."19 The provision applies only to same-sex marriages and mirrors section 45 of the Civil Union Act,20 which also provided for continuing jurisdiction by mere act of entering into the union, reserved jurisdiction for any purpose, and provided for judgment if the grounds were met.

Amendments to the Illinois Civil Union Act

Respect for marriages and civil unions entered into in other jurisdictions. Section 915 of the Act amends section 60 of the Civil Union Act (Reciprocity) to provide that a marriage "whether of the same sex or different sexes and provided that it is not a common law marriage, legally entered into in another jurisdiction shall be recognized in this State as a marriage in accordance with the provisions of the [IMDMA]." It also expressly declares that section 216 of the IMDMA "shall not apply to marriages of same-sex couples validly entered into in another jurisdiction."21 The first change was necessary to distinguish between marriages and civil unions, formally equated under the Civil Union Act. The second was to make a provision of the Civil Union Act consistent with the removal of the prohibition against same-sex marriages in section 212 of the IMDMA.

Voluntary conversion of civil union to marriage. Section 915 of the Act amends the Civil Union Act to enable conversion of a civil union to a marriage, but only by affirmative act. It creates two separate, mutually exclusive ways to do so, each at no cost.

The first, in subparagraph (a), permits parties to a civil union to marry, with no time limit. The alternative, in subparagraph (b), permits parties to convert their civil union to a marriage merely by applying to do so, but only for a period of one year. It further provides that marriages converted by application shall "be deemed effective on the date of the civil union."22 Subparagraph (c) provides that if either option is used, "the parties, as of the date stated on the marriage certificate, shall no longer be considered in a civil union but rather shall be in a legal marriage."23

Unresolved issues and potential complications

Continuing jurisdiction - proceed with caution? The Act's provision for continuing personal jurisdiction of the Illinois courts discussed in the IMDMA section above is aimed at same-sex couples who married in Illinois but live in a non-recognition state. It applies to same-sex couples who marry in Illinois, whether or not they ever lived here.24 The statute enables the parties to avoid the usual residence requirements for personal jurisdiction for a divorce and proceed only on grounds (subject matter jurisdiction).

There is no comparable provision of the IMDMA automatically attaching personal jurisdiction of the courts for all purposes. Illinois, like all states, does not impose a residency requirement for marriage. But at least one of the parties to an Illinois divorce must be a resident. And while Illinois may have one of the shortest residency requirements for divorce - resident at time of filing, maintained continuously for 90 days preceding entry of judgment25 - personal jurisdiction for divorce is nonetheless measured by residence in relation to the time of filing and judgment, not from when the relationship is solemnized.

If either or both parties are not Illinois residents and live in a nonrecognition state - whether or not they resided here when they married - relying on section 220 could be risky if the resident state does not recognize same-sex marriage and refuses to recognize the continuing jurisdiction of the Illinois courts, for whatever reason.

Conversion of civil unions to marriages. Section 915 of the Act, amending the Civil Union Act by permitting "parties to a civil union" to voluntarily convert a civil union to a marriage, raises two questions.26 First, it does not specify whether it only applies to an Illinois civil union or other "substantially similar legal relationship" entitled to equal recognition under Illinois' Civil Union Act, specifically section 60 ("Reciprocity").27

Second, the two options for conversion could result in different dates of vesting of the marital estate, depending not upon the date the parties obtained their civil union but instead upon whether they chose to convert it to a marriage and, if so, which option they chose. If they choose to convert under subparagraph (a), by marrying, there is no time limit to do so and the effective date of the marriage is, according to subparagraph (c), the date of the marriage, not the date of the prior civil union. If, however, they choose to convert the civil union by application, under subparagraph (b), the marriage will "be deemed effective on the date of the civil union," but this option is available for only one year from the effective date of the Act.28

The "reverse evasive marriage statute." Finally, the only meaningful shortcoming of the new Act is its failure to address section 217 of the IMDMA, which voids an Illinois marriage by non-residents that would be void in their state of residence. Enacted more than 100 years ago, the statute contains two parts. The first, section 216, voids prohibited marriages obtained elsewhere by Illinois residents, and the second, section 217, declares as void for all purposes marriages obtained here by non-residents coming to, and with an intent not to remain in, Illinois to obtain a marriage deemed void in their state of residence.

Neither provision of Illinois' statute was repealed by the Act. Section 216 was amended as to same-sex marriages by the new Act's removal of "marriages between 2 persons of the same sex" from the list of prohibited marriages under the IMDMA.29 Section 217, however, was left intact by the new Act.

Section 217's continued viability could have disproportionate impact on same-sex couples seeking to marry here. The federal decision in Windsor, which recognizes same-sex marriage under all of federal law without regard to the parties' residence - but only if valid where celebrated - is a compelling incentive for couples from non-recognition states to go elsewhere to marry. Illinois, like all states, has no residency requirements for marriage but is in close geographic proximity to many non-recognition states. While the recent wave of federal court decisions overturning same-sex marriage bans might ultimately render the question moot, section 217 remains valid for now.

Conclusion

The new Illinois Religious Freedom and Marriage Fairness Act completes the promise of the three-year old Civil Union Act - full relationship equality under state law - by providing the one thing the prior Act did not: marriage. The timing could not have been better, for couples hoping to marry, at least, given the demise of section 3 of DOMA in the U.S. Supreme Court's decision in U.S. v. Windsor. Full marriage equality is now available in Illinois, as a matter of both state and federal law.

For Illinois, the new Act is a significant step forward, not just in its grant of full equality to same-sex couples who wish to marry, but in its decision to keep civil unions without regard to the gender of the parties. The Act signals that marriage itself is not the only relationship entitled to recognition and in so doing makes a clear statement that, at least under state law, marriages and civil unions are equal.

For the practitioner, it's good news. Advising and guiding same-sex couples, so long as they are married and the distinctions between marriage and its equivalents are understood, should now be no different than with opposite-sex couples. The same is true for divorce. The removal of gender distinctions in the Marriage and Dissolution of Marriage Act shouldn't complicate the regular practice of family law, and marriages and divorces should now work the same irrespective of the sex of the parties.

Because Windsor applies only to marriage, federal law could continue to be in conflict with state determinations on every relationship but marriage. Given that Illinois law is much broader than federal law, equating all marriages, civil unions, domestic partnerships, and the like, lawyers must continue to give different advice to couples forming or dissolving these other relationships.

Richard A. Wilson is a founding member and past chair of the ISBA's Standing Committee on Sexual Orientation and Gender Identity, a member of the ISBA Family Law Section Council, an adjunct at the University of Michigan Law School and Chicago-Kent School of Law, and a partner at Grund & Leavitt in Chicago, where he concentrates his practice in family law. The author acknowledges and thanks Adam C. Kibort, an associate at Grund & Leavitt, for his invaluable assistance and critical advice in the preparation and review of this Article.

Same-sex marriage, civil unions, and federal law

The Supreme Court's 2013 Windsor ruling means the end of federal refusal to recognize valid same-sex marriages. But what does it mean for civil unions?

In its ruling in United States v. Windsor, 133 S. Ct. 2675 (2013), the U.S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act ("DOMA"). The effect was to fully recognize same-sex marriages under all federal law if they are valid where celebrated, even if they are not recognized under state law where the parties reside. Reaffirming traditional federal deference to the state's exclusive power to define and regulate marriage, so long as federal constitutional guarantees were not infringed, the Court in Windsor held that Section 3 of DOMA "is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment…."

What is, or was, DOMA?

Passed by Congress in 1996, before same-sex marriage or its equivalent had been recognized in any state, the Defense of Marriage Act (DOMA), codified at 1 U.S.C. § 7 and 29 U.S.C. § 1738C, was the federal government's first and only enactment of substantive law on marriage, which had historically been a matter of state law. DOMA, consisting of three sections (section 1 is the title) declared in section 2 that states have the right to refuse to recognize same-sex marriages or other similar relationships legally entered into in other states and, in section 3, defined "marriage" and "spouse" for purposes of federal law to mean only a "legal union between one man and one woman as husband and wife." (Section 2 was not before the court in Windsor.)

Section 3 of DOMA upended longstanding federal deference to state determinations of marriage and spouse in both intact marriages and upon termination by dissolution or death, precluding federal recognition of valid same-sex relationships and resulting in unavoidable discrimination and substantial penalties for these relationships, primarily in the inability to obtain the same benefits otherwise available to parties whose marriage is or was recognized under federal law.

This frequently arose in the area of taxation, where it precluded same-sex married couples from filing joint federal tax returns and availing themselves of more than 1,100 federal benefits that turn on marital or spousal status. It also denied them the ability to divide the marital estate and apportion retirement and other assets upon divorce without tax penalties, created a conflict between state and federal law on the rights to and taxation of spousal support or maintenance, and limited the rights of same-sex partners upon the death of a spouse.

What does Windsor mean for civil unions?

The holding in Windsor is expressly limited to marriages. Windsor, 133 S. Ct. at 2696. What that means for Illinois, which did not abolish civil unions in favor of marriage but decided to permit both, is not clear. There is no express requirement in federal law to distinguish between marriages and other substantially similar legal relationships created by state law, and the distinction itself was not an issue in Windsor. Section 3 of DOMA simply defined what relationship would be recognized under federal law: a marriage between one man and one woman.

Marriages and civil unions are equal under Illinois law as a result of the marriage equality act. Yet under Windsor, parties to a civil union, even if fully recognized by state law, could continue to be deprived of the benefits of full, federal recognition. That would create an inferior class of relationships under federal law, despite the equality granted by the state. - Richard Wilson


  1. Pub. Act 98-597 (eff. June 1, 2014) (adding 750 ILCS 80/1 et seq.). Named "SB0010" and originally passed by the State Senate on Valentine's Day, 2013, the final version is available at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-0597.
  2. Three federal court decisions issued in Chicago following the passage of the Act, permitted same-sex marriage prior to its June 1, 2014 effective date. Gray v. Orr, No. 13 C 8449 (N.D. Ill. Nov. 26, 2013) (right to immediate marriage to plaintiffs, where one was terminally ill); Lee v. Orr, No. 13-cv-8719 (N.D. Ill. Dec. 10, 2013) (right extended to all who could show terminal illness); Lee et al. v. Orr, No. 1:13-cv-08719 (N.D. Ill. Feb. 21, 2014) (holding that Illinois' existing statutory bans on same-sex marriage were unconstitutional violations of equal protection and ordered the sole defendant, the Cook County Clerk, to issue licenses immediately). Based upon the decision in Lee and in reliance on a letter from Illinois Attorney General Lisa Madigan (available at http://capitolfax.com/HonStephenMBeanLtr.pdf), clerks in Cass, Champaign, Macon, Madison, and McClean counties began to permit same-sex marriages.
  3. 750 ILCS 75/1 et seq.
  4. 750 ILCS 5/101 et seq.
  5. United States v. Windsor, 133 S. Ct. 2675 (2013).
  6. 750 ILCS 75/5, 20.
  7. 750 ILCS 80/5.
  8. 750 ILCS 5/201.
  9. 750 ILCS 80/5, 10.
  10. Pub. Act 98-597, § 1.
  11. Id. § 5.
  12. Id. § 10(c).
  13. Id. § 15.
  14. Id. § 20.
  15. 750 ILCS 5/201.
  16. Id. § 209.
  17. Id. § 212.
  18. Id. § 212(a-5).
  19. Id. § 220.
  20. 750 ILCS 75/45.
  21. 750 ILCS 75/60.
  22. Id. § 65(b).
  23. Id. § 65(c).
  24. 750 ILCS 5/220.
  25. Id. § 401(a).
  26. Pub. Act 98-597, § 915.
  27. 750 ILCS 75/60.
  28. Id. § 65(b).
  29. 750 ILCS 5/201(a)(5).