Civil Unions in Illinois – How’d They Get It Right?

Posted on February 7th, 2011 by Katherine Franke

The Governor of Illinois signed a Civil Unions law this week – this event gained much media attention.  But most of the coverage described the new law as offering same-sex couples the legal rights that married couples get by virtue of marriage.  Well, that’s only 1/2 the story.  In fact, unlike in most jurisdictions in the U.S. that have enacted a civil union law (such as New Jersey, Vermont and California), the Illinois law covers BOTH same-sex and different-sex couples.

This is great news.  Rather than setting up a separate and, by some accounts, inferior institution for same-sex couples to gain legal status, the Illinois law creates a separate civil status for all couples regardless of their homo- or hetero-ness.  This is, of course, what the French, the Dutch, and many other non-U.S. jurisdictions have done.  Straight people in those places have found a civil union an attractive alternative to marriage for a range of reasons.  Some see it as an intermediate step before marriage, others see it as a viable alternative to marriage.

The Illinois Civil Union law establishes a Civil Union as having the same status as a marriage – to the extent that Illinois can do so:

– The ability to own property jointly, including the presumption that the property obtained by either partner after joining in a civil union is owned jointly;
– Certain protections against losing your joint property to creditors;
– The right to make decisions about one another’s medical care if either of you is unconscious or otherwise unable to make those decisions;
-Rights to keep private your conversations and to avoid testifying against one another;
– The right to court-supervised distribution of property if you and your partner break up;
– The right to share the same nursing home room;
– Pension protections for surviving partners of teachers, police officers, and firefighters, and those other state, county, and municipal employees whose pension benefits pass to their spouses at death;
– Workers’ compensation benefits for partners of employees who are accidentally injured or killed at work;
– The ability to recover for your partner’s wrongful death;
– Intestacy rights to ensure that your surviving partner will receive some or all of your property if you die without a will.

But, of course, entering into a Civil Union in Illinois will not afford couples any of the federal protections or responsibilities federal law provides to married couples (such as social security, immigration, tax and other benefits that different-sex couples gain when they marry).  But then, if Illinois had amended their law to allow same-sex couples to marry, the federal government would not have recognized those marriages either under the Defense of Marriage Act.

As the Illinois ACLU affiliate points out in its just-released “What You Should Know About Illinois’ New Civil Union Law,”

Civil marriage is a widely recognized and respected social structure for two people who have committed to build their life together. Civil unions are not universally understood. It is unclear whether they will be given the same level of respect as marriage in Illinois and elsewhere. What is already clear is that different-sex couples get to choose whether to enter a civil marriage or a civil union; lesbian and gay male couples are given only the civil union option.

See the ACLU ‘s summary of the law here.

But in this lies the rub.  While LGBT legal organizations have advocated for the passage of Civil Union laws in states where marriage was not politically viable or had been made legally impossible through mini-DOMAs, they have done so while almost always denigrating Civil Unions as suffering a dignity-deficit when compared with full-blown marriage.  While this may be true as a matter of social fact, the pro-marriage advocates in the gay and lesbian community have played a not insignificant role in perpetuating the devaluation of Civil Unions.  A more progressive approach to this social-legal issue might commit itself to two simultaneous aims: lifting the bar on marriage for those same-sex couples who wish to be married, and simultaneously working to create viable, legally and economically secure life outside marriage.  The marriage equality movement’s uni-focal strategy to “gain” marriage rights for same-sex couples has, unfortunately, made arguments over and over that have denegrated the lives of people who are not, choose not to, or cannot marry.

Let’s hope the Illinois Civil Union regime does a few things: i) offers new legal security for same-sex couples who want it, ii) becomes an attractive way for different-sex couples to formalize their partnerships as an affirmatively chosen alternative to marriage, and iii) provides a means by which we might start to undermine the social hierarchy that legitimizes married people and delegitimizes those who organize their lives on marriage’s outside.

The text of the Illinois Civil Unions law is here.


  1. Unsurprisingly, I’m inclined to agree with you. Here in Washington state domestic partnerships follow the more common pattern–they are for same-sex couples only unless one member of a different sex couple meets an age requirement. (This access for different sex couples over a specified age is a common thread, too.)

    Thus far, few if any perceived the exclusion of most different sex couples from access to domestic partnerships as problematic. As you suggest, it’s DP is seen as second best and very few people clamor to have access to second-best. But we’ve an odd tax situation here now and I do wonder if it will raise the issue.

    For reasons too complicated to explain here (but see Pat Cain’s blog on same-sex tax at Santa Clara Law School) parties to a domestic partnership with unequal incomes (where one person earns a lot more than the other) may have a significant federal tax advantage over both unmarried and married couples with identical incomes. I just wonder if any different sex couples will complain about that and, if they do, what the proposed remedy is.

  2. US: Civil Unions in Illinois – How’d They Get It Right?

  3. […] new Delaware law, unlike the one recently enacted in Illinois, applies only to same-sex couples.  So in Delaware different-sex couples get marriage, same-sex […]

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