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Lesbian palimony decision calls on common-law marriage rules
by Matt Simonette
2016-08-22

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The Illinois Supreme Court, on Aug. 18, ruled that a lesbian was not entitled to a share of her longtime-partner's medical practice, though the couple were together nearly three decades.

Eileen Brewer, a Cook County judge, and Dr. Jane Blumenthal split in 2008, long before marriage equality was signed into law in 2013. Brewer and Blumenthal had also raised three children together.

A 1979 ruling, Hewitt v. Hewitt, barred such claims, so Brewer's attorneys wanted courts to rule that that decision was now outdated, given that legal recognition of cohabitation and same-sex relationships had significantly broadened in the decades since. But Blumenthal's attorneys maintained that Hewitt v. Hewitt was decided mainly on the basis of Illinois' longstanding rejection of common-law marriage. Illinois is one of only three states that does not allow property-division claims between unmarried partners.

In their Aug. 18 5-2 ruling, the state Supreme Court was largely unmoved by Brewer's position. Among their determinations was that subsequent recognition of same-sex relationships, which Brewer tried to use to bolster her claims, had come about from mainly legislative change, not legal precedent.

"Brewer's argument that we should recognize new public policy justifications to support her counterclaim is further undermined by the fact that all of the public policy changes to which she cites resulted not from judicial action but from the legislature. In each example, it was the legislature, not the courts, that determined what Illinois public policy was ( or was not ) to be," said the decision, authored by Justice Lloyd A. Karmeier.

San Francisco-based National Center for Lesbian Rights ( NCLR ) assisted Chicago Attorney Angelika Kuehn with Brewer's defense.

In a statement, NCLR Legal Director Shannon Minter said, "The Court's ruling today is a devastating blow to unmarried couples and their families. As the dissent points out, the majority's opinion ignores the reality of families and will cause serious harms to countless individuals who are barred from bringing the same common law claims available to all other people in Illinois, solely because they were in a non-marital relationship. Whether a couple decides to marry or not, all of us are equal before the law. Today's decision is a huge step backward for Illinois, which is now dramatically out of step with the rest of the country and with basic principles of fairness and equal access to the courts."


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