LGBT advocates may be making a new case for passing equal marriage legislation in Illinois: cutting down on confusion.
According to legal experts, U.S. Supreme Court rulings effectively striking down the Defense of Marriage Act and California's Prop. 8 ban on same-sex lay out a minefield of questions and problems for same-sex couples in Illinois.
Illinois currently offers civil unions to same-sex couples, a designation that, by state law, is supposed to be the legal equivalent of marriage. But many believe that the effective strike down of DOMA will not help Illinois civil union couples, whose relationships will not be viewed as marriages.
That is causing some legal experts in the state to offer unexpected advice: leave Illinois and get married.
"We have on the table now an awful lot of legal rights and benefits that same-sex couples need the freedom to marry now in order to access," said Lambda Legal's Christopher Clark.
Clark is a lead attorney on a lawsuit that seeks to overturn the state's ban on same-sex marriage. He points out that federal programs and benefits lack uniformity when determining relationship status. In some instances, the federal government will look at the state laws of where someone lives to determine if they are in a marriage. In other cases, marriages may be recognized based on where the marriage occurred.
Couples married outside of Illinois are legally determined to be in civil unions once inside the state. But in some cases, those couples will be able to access federal benefits and programs that civil union couples will be denied.
For now, said Anthony Niedwiecki, associate professor at the John Marshall Law School, same-sex couples in Illinois should skip the civil unions and head to a state that offers equal marriage.
"Go get married in a state that you can," he said. "You'll have a civil union in Illinois but you'll still have access to the federal benefits."
According to Courtney Greve, a spokesperson for Cook County Clerk David Orr, Cook County alone has seen at least 3,215 civil unions since they became available in June 2011.
Now, experts say, those couples should consider getting legally married out of state.
Richard Wilson, a lawyer who specializes in LGBT family law, feels that the repeal of DOMA only strengthens the argument that when it comes to LGBT relationship recognition, separate is not equal.
"It's just not assured, guaranteed or fair," Wilson said. "It's legally and politically, legally especially, indefensible."
Wilson said that the Supreme Court rulings are undoubtedly good news. But he said, the DOMA ruling also creates uncertainty for same-sex couples about what they both responsible for and entitled to.
"I think with all of it, it's going to be agency by agency and program by program," Wilson said.
Sue Hofer, a spokesperson to the Illinois Department of Revenue (IDOR), said that the state is still in the process of figuring out what the repeal of DOMA will mean for Illinois taxpayers. IDOR staffers are scheduled to meet and iron out the details in the coming days, she said.
When civil unions took effect in 2011, IDOR found itself in a conundrum. Under state law, civil union spouses should have been able to file taxes jointly as married couples did. But Illinois tax filing is based on federal returns. The federal government, under DOMA, did not recognize same-sex marriages.
IDOR initially stated in 2011 that same-sex civil union spouses would have to file their state returns separately.
But after protest from LGBT groups and pushing from Gov. Pat Quinn, IDOR changed course. The department remedied the problem by allowing civil unions partners to create two federal returns. The first return, used for federal tax purposes, listed a spouse as an individual. The second, listing both spouses, served as a kind of dummy form that would not be filed federally but would determine state filing.
The repeal of DOMA, however, may not untangle the questions surrounding Illinois taxes, Hofer noted.
"I don't know that that's going to change," she said.
The rules in Illinois, Hofer said, could depend what the Internal Revenue Service says about recognition of civil unions.
Such questions get at a larger point LGBT advocates have been pressing all year: Illinois needs to legalize equal marriage. Attempts to pass an equal marriage bill earlier this year fell short in Illinois. The bill cleared the state Senate but failed gather enough votes in the House.
Equality Illinois CEO Bernard Cherkasov said in a statement that the DOMA rulings bring new urgency to the fight in Illinois.
"For anyone who doubts that civil unions in Illinois created an unacceptable second-class status, the court's ruling is a powerful message that the state House urgently needs to join the Senate and pass the freedom to marry," said Cherkasov. "It is crystal clear now that by failing to act the House denied gay and lesbian couples equal access to the federal protections that married couples in other states will now enjoy."
Now, Niedwiecki says, the difference between civil unions and marriages in Illinois is starker than ever.
"It's very easy for Illinois to fix this," he said. "That's just to pass the marriage bill."
Equal Illinois has issued an FAQ for Illinois residents on the DOMA and Prop 8 rulings. That can be accessed here: http://eqil.org/cmsdocuments/Equality_Illinois_FAQ_final.pdf.
