The recent passage of the Illinois Religious Freedom Protection & Civil Unions Act is a victory for LGBT residents in Illinois. It was a hard-fought battle for many who have envisioned a day when their relationships would be seen equally under the law and they would share the same protections, benefits and peace of mind as their opposite-sex neighbors. And so, throughout Illinois, couples are eagerly awaiting June 1, 2011, when the civil-union law takes effect and they share in the opportunity to receive some 650 state rights, benefits and protections.
These benefits and protections include: emergency medical decision-making power and hospital visitation rights; access to state spousal benefits; equal tax treatment at the state and local level; spousal testimonial privilege; and protections for non-biological parents.
One of the most anticipated areas of protection the act will help to ease for same-sex couples is health emergencies. Although President Obama signed an executive order which allows an individual the right to designate a person as his or her next of kin, in cases of emergency the individual might be unable to make the designation for his or her partner to act in that capacity.
With the new law, Equality Illinois CEO Bernard Cherkasov explained, "If they are in a civil union in Illinois, by virtue of their being in a civil union, person B would have all the rights with person A in the hospital that any married couple would have."
The civil-union statute will also help protect the family of a spouse who dies without a will. Lambda Legal Defense and Education Fund Senior Staff Attorney Camilla Taylor said, "If you are civil union partners and you don't write a will and one of the members of the couple dies the other one will inherit automatically under rules that make clear that the surviving partner is the equivalent of a spouse. There are all sorts of other protections that go along with that for a surviving partner. There are protections for the homestead. There are protections against having to repay debts that are incurred for medical costs and nursing home costs under certain circumstances. Now a surviving partner would benefit from all of those protections."
Taylor pointed out that one of the most important benefits she sees under the new law are protections for same-sex couples' children. "The fact that a child is legally presumed a child of both parents from birth means that children no longer are vulnerable. ... So from birth the non-biological parent of the child has the authority to make medical decisions, to take the child home from the hospital, to enroll the child in a daycare program, to do all of those things that parents need to do on a daily basis in order to keep their children secure. That is a crucial right."
Still, despite all of the benefits and protections that residents of Illinois are gaining, it is important for couples intending to become civilly united to keep in mind that at the federal level nothing has changed. They will still need to work with their lawyers and financial advisors to ensure that beyond the borders of the state their families are protected.
"Civil unions are so monumental for same-sex couples in Illinois," said Cherkasov. "In one regard it's because the lawmakers have intended for this to provide all the protections and benefits that the state provides to married couples. But on the other hand, the crucial distinction is this is a state concept, not a federal concept. Even though the state of Illinois will recognize same-sex couples in a civil union the federal government will continue to deny recognition."
Couples with a civil union in Illinois face a variety of circumstances beyond the state. In some states where civil unions or same-sex marriages have been granted the couple may find that their civil union is respected. Yet, in other states that have not written that expressly in their law they may find their relationship is unrecognized or the rights granted differ in some ways. There are also many states that deny legal recognition entirely for same-sex couples where the relationship will not be respected.
Taylor noted, "An Illinois civil union would be unlikely to be treated as a marriage in California. It would more likely be treated as an equivalent to a domestic partnership. By contrast, I think either Vermont or New Hampshire converted civil unions automatically to marriages. So an Illinois civil union would likely be treated as a marriage there. It's less clear elsewhere. A state like Iowa, that doesn't have civil union law, which allows same-sex couples to marry, it's unclear what status same-sex couples would have there."
Taylor added, "So this means couples with civil unions still need to visit a lawyer and draw up all the legal documents to protect themselves that they would draw up if they had no legal relationship to each other whatsoever. So they need to create wills, powers of attorney, perform adoptions of their children.
"Even though a child born to a couple with a civil union here in Illinois is legally presumed a child of both civil union partners under Illinois law. This couple still needs to pay the thousands of dollars it costs to perform an adoption of their own child, because they may travel outside of Illinois and their civil union may not be respected and so the parent-child relationship that resulted from their civil union may not be respected. By contrast, an adoption decree must be respected in all other states. It's a court order."
For same-sex couples outside of Illinois who have a civil union, domestic partnership or are married, they will be considered civilly united in Illinois "This is what we have learned from other states that had not clearly defined this," said State Rep. Greg Harris. There is a section of the law that says marriages, domestic partnerships, civil unions and other substantially similar legally recognized relationships form other jurisdictions will be recognized as a civil union in Illinois."
As long as the Defense of Marriage Act remains and many states continue to deny same-sex couples any type of legal recognition, couples taking advantage of civil unions must continue to protect their families by drawing up all the legal documents they would need without the law.
"I think the current federal situation is not sustainable," said Cherkasov. We have same-sex couples who in some jurisdictions like California were allowed to get married but their peers, couples living across the street form them, are not allowed to get married, and when people travel just a few miles across state boundaries, suddenly they go from being in a married relationship to being strangers in the eyes of the law.
"That unequal treatment of American citizens is not sustainable. The constitution specifically provided for equal protections for all Americans. I think the federal government is now going to have to reconcile with how different Americans living just a few houses or miles from each other are treated differently."
Harris agrees that the federal government is going to need to address this issue: "I think from a public policy perspective, as we move down the road to full equality, all these problems of going from state to state, all these problems with state law conflicting with federal law are just going to drive the argument that we need to resolve this issue on a national basis and grant marriage equality for everyone."
In the meantime, civil-union couples can take comfort in the many local and state benefits and protections that are now available to their families under Illinois law.