On June 1, 2011, the Illinois Religious Freedom Protection and Civil Union Act (750 ILCS 75/1 et seq.) (hereinafter “Act”) signed into law by Governor Pat Quinn on January 31, 2011 went into effect throughout Illinois granting two persons of either the same or opposite genders who are eighteen years or older the right to enter into a civil union.  Under the Act, those who enter into a civil union will be entitled to the same benefits available to couples who marry under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.) (hereinafter “IMDMA”). The Act is almost identical to the IMDMA in terms of the process by which a civil union is obtained, maintained and dissolved and the Act even incorporates specific provisions of the IMDMA to determine how to dissolve a civil union.

The Act was enacted to provide persons of the same gender who are not permitted to marry under the IMDMA or persons of opposite genders who do not wish to marry under the IMDMA with equivalent legal rights in Illinois to those of spouses under the IMDMA. Section twenty of the Act states, “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.” The Act also recognizes the validity of and grants reciprocity to couples who marry or enter into civil unions in other states as valid and protectable relationships under Illinois law. Section sixty of the Act states, “A marriage between persons of the same sex, a civil union, or a substantially similar legal relationship other than common law marriage, legally entered into in another jurisdiction, shall be recognized in Illinois as a civil union.”

However, even though Illinois recognizes unions between consenting adults created in Illinois and in other states as a valid relationship with rights equivalent to those granted to spouses under the IMDMA, the federal Defense of Marriage Act (hereinafter “DOMA”) is in conflict with Illinois law. The DOMA restricts the use of the term “spouse” under federal law to a person of opposite sex who is husband or wife and the term “marriage” under federal law to be a legal union between one man and one woman as husband and wife. The narrow definitions of “marriage” and particularly “spouse” are vital distinctions because they create a conflict between federal and state law. While Illinois recognizes civil union parties to have the same rights as spouses, any rights, benefits and interests granted and governed by federal law relating to “spouses” are only afforded to traditional spouses. This is very important to recognize because many significant areas fall under federal jurisdiction such as those relating to federal employees, social security survivor benefits, income taxation joint filing, immigration sponsorship and pension, retirement or health care benefits governed by federal law and therefore, parties to a civil union in Illinois are not considered spouses for equal treatment under federal laws and benefits.

Dissolutions of Illinois civil unions are also governed by the Act. Section forty five of the Act specifically incorporates the dissolution sections of the IMDMA and establishes that the termination of a civil union is to be commenced and dissolved under the same guidelines as married couples divorcing under the IMDMA. One important distinction to note is that although Illinois law treats dissolution of civil unions the same way as dissolution of marriages, federal law does not. This is significant because the division of the marital estate incident to a divorce is not a taxable event to either party under federal law, however, the DOMA does not allow that treatment to the parties of the dissolution of a civil union and the division may result in federal income tax consequences. It should also be noted that under Illinois and federal law, the payor of spousal support for divorced married couples is entitled to declare a deduction for the maintenance payments on an income tax return; however, that federal deduction will not be available to the payor for dissolved civil union parties.

The Illinois Religious Freedom Protection and Civil Union Act has created a new legal status for same gender couples who cannot marry and opposite gender couples who do not wish to enter into marriage in Illinois. This new legal status has created many benefits, privileges and rights for civil union participants that were unavailable prior its enactment, which has opened the door for many new legal issues going forward. However, it is important to remember that just because the state of Illinois recognizes civil unions and grants rights and benefits equal to those of spouses married under the Illinois Marriage and Dissolution of Marriage Act that does not mean civil union parties will have those rights and benefits recognized under federal programs and laws such as income taxation joint filing, social security survivor benefits, immigration sponsorship and pension, retirement or health care benefits governed by federal law.