Monday, January 31, 2011

Illinois civil union law signed today -- more equality yet more injustice

Illinois will become the 12th jurisdiction in the country to provide formal recognition of same-sex couples in a status that confers the state-based rights and responsibilities of marriage. Governor Quinn signs the bill into law later today, and it becomes effective June 1. (To recap -- marriage is available in Connecticut, DC, Iowa, Massachusetts, New Hampshire, and Vermont; civil union is available in Illinois and New Jersey; domestic partnership is available in California, Nevada, Oregon, and Washington -- and also in DC).

That's good news. And adding to the good news, Illinois joins Nevada and DC in making the status available to all different-sex as well as same-sex couples. (California and Washington include different-sex couples if one partner is 62 or older). The bill's sponsor, Rep. Greg Harris, has said it is wrong to write a law that discriminates. I couldn't agree more.

The law will also treat same-sex couples married elsewhere as members of a civil union in Illinois. This is an important provision. Without it, the state's DOMA might leave such a couple with no legal status. The existence of that DOMA, of course, is its own injustice, as it perpetuates the notion that same-sex couples are not good enough for marriage.

But I've got another complaint with Illinois. The state is shameful in its legal treatment of unmarried couples. Under a dreadful 1979 Illinois Supreme Court ruling, the state will not enforce agreements between unmarried couples or allow one partner to have any claim to property owned by the other. That ruling will remain the law for couples who do not enter civil unions. While only Washington state treats property acquired by unmarried partners as "community" property, allowing for a just distribution when the couple splits up (the result I favor), most states do allow one partner to prevail if s/he can prove that there was an agreement to share assets or provide support. It's hard to prove such an agreement, but Illinois goes the additional step and refuses to enforce such agreements even when they can be proven.

Even worse, Illinois does not allow a nonbio mom to file for custody or visitation rights with the child born to her same-sex partner, even if they planned for and raised the child together as two parents. While it may turn out that civil union partners will both be legal parents of a child born to one of them if a doctor performs the insemination and both civil union partners give written consent, a child whose parents do not enter a civil union will have only one parent and will risk losing that parent if the couple splits up.

These two inequities can be remedied only by additional statutes, and I won't wholeheartedly join the celebration in Illinois until neither marriage nor civil union forms such a bright line between whose families count and whose don't.

Thanks to Chicago lawyer Richard Wilson, for keeping me posted on Illinois developments and sharing my concerns.

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