Gay rights setback seen in Illinois Supreme Court ruling

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More than 35 years ago, the Illinois Supreme Court determined that common-law marriage would not be recognized in the state when justices ruled against a woman who sought property from a man she’d had children with, but never married.

The court’s reasoning in 1979 was to uphold a “policy of discouraging cohabitation between unmarried parties and disfavoring nonmarital children,” an Illinois appeals court wrote of the case years later.

The state’s highest court weighed in on the issue again this week, in a lawsuit involving a Cook County judge who sought part ownership of her longtime partner’s medical practice after the couple broke up.

This time around, the Supreme Court acknowledged that societal norms and attitudes about unmarried people living together are far from what they were in the 1970s.

Despite that change, and factoring in the legalization of same-sex marriage, the court ruled that unmarried domestic partners still have no right to the other’s property if they break up.

“Today, the court does not share the same concern or characterization of domestic partners who cohabit, nor do we condone such comparisons,” Justice Lloyd Karmeier wrote.

Setting aside the moral judgments of the 1979 case, the judge wrote that the court’s earlier “core reasoning” on the issue remains sound.

“Since marriage is a legal relationship that all individuals may or may not enter into, Illinois does not act irrationally or discriminatorily in refusing to grant benefits and protections … to those who do not participate in the institution of marriage,” the Karmeier judge wrote.

Though same-sex couples have won the right to marry in Illinois, some said they were disappointed in the ruling. They hoped the case would change the old law, calling it an archaic policy that discriminates against all unmarried couples, gay and straight.

“I’m shocked,” said Shannon Minter, attorney for the National Center for Lesbian Rights, which helped represent Eileen Brewer, the Cook County judge who brought the suit. “It’s a devastating setback for unmarried couples, and is so far out of line with current legislative policies in Illinois and the rest of the country.”

Brewer and Dr. Jane Blumenthal, a successful gynecologist, moved in together in 1981 and over more than 25 years raised three children together, according to court documents.

After they split up, Blumenthal asked to have their two-story home in Kenwood and properties in Michigan and Mexico sold to divide the proceeds.

In contrast, Brewer sought sole possession of the house, arguing that she had been a stay-at-home mom when the children were little, that the couple’s co-mingled funds had helped pay for the house and that she had paid for the mortgage after the breakup.

Brewer also sought a share of Blumenthal’s medical practice, Gynecologic Specialists of Northwestern, which Brewer said she helped buy an interest in. She argued that the couple’s relationship was identical to that of a married couple. They exchanged rings, put their money together and executed wills and trusts with each other as beneficiaries and executors.

When the couple failed to come to terms, Blumenthal sued Brewer, a case that was sealed by a judge. Brewer later filed a countersuit.

But because Brewer and Blumenthal had never married, divorce law and its guidelines for dividing property did not apply to them.

Since 1905, Illinois law has not allowed common-law marriage, which recognizes rights for people who’ve lived together as couples.

Following the precedent of the Supreme Court ruling in the 1979 case known as Hewitt v. Hewitt, a trial court judge ruled in the doctor’s favor. Equity in the house, valued at $1 million, was divided and Brewer bought out Blumenthal’s share.

The Illinois Appellate Court overturned that ruling, arguing that the Hewitt case was obsolete, in consideration of many recent changes in the law regarding marriage.

Among those changes are no-fault divorce, child support for nonmarital children and laws allowing civil unions and gay marriage.

In his opinion, Karmeier emphasized that state lawmakers, who are “far better suited to declare public policy,” had the opportunity to change the law for unmarried couples, and have not done so.

In a dissenting opinion, Justice Mary Jane Theis, joined by Justice Anne Burke, called the majority ruling “an oddly myopic and moralistic view of cohabitation.”

Theis wrote that the Hewitt ruling “is outmoded and out of touch with contemporary experience and opinions on cohabitation,” as well as with changing law.

Reuben Bernick, the doctor’s attorney, said the ruling merely ensures each person can keep whatever property he or she brought into the cohabitation.

While this case involved two relatively wealthy individuals in a same-sex relationship, most of those affected are unmarried straight couples who in some case are stuck with debt, said Chicago family law attorney Richard Wilson. Among those most affected may be cases in which one spouse has title to the home, and the other is left with nothing.

Lawmakers did substantially overhaul the state’s marriage and divorce law effective this year. Wilson, who helped work on those changes, said lawmakers may be receptive to addressing this overlooked part of the law.

rmccoppin@chicagotribune.com

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