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Illinois high court asked to rehear bar on claims by unmarried partners
From a press release
2016-09-08

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( San Francisco, CA, September 8, 2016 )—Today, Eileen Brewer, represented by the National Center for Lesbian Rights ( NCLR ) and Chicago attorney Angelika Kuehn, asked the Illinois Supreme Court to rehear its August 18, 2016 Blumenthal v. Brewer decision, which barred former unmarried partners from enforcing property claims against one another when they break up. The case arose when Brewer brought claims against her former partner, Jane Blumenthal, seeking an equitable division of the property and other assets they had accumulated together during their 26-year relationship.

The petition filed today for rehearing argues that the Illinois Supreme Court's decision fails to address a central legal issue in the case—whether it violates the constitution to penalize same-sex couples for being unmarried even though they were legally unable to marry during the entire span of their relationship. According to the petition, the Court's ruling punishes same-sex partners "for failing to enter into a relationship from which they were legally barred, based on laws that have now been recognized to be discriminatory and unfair."

The Illinois Supreme Court's decision initially addressed the constitutionality of applying its rule to former same-sex partners in a paragraph that was subsequently removed from the official opinion. In its initial decision, the court said that Brewer should have tried to marry in another state or brought a lawsuit challenging Illinois's marriage ban. Shortly after issuing its decision, the court deleted that part of its ruling. The final amended opinion does not address Brewer's claim that it violates the federal Constitution for Illinois to penalize same-sex couples for being unmarried, when Illinois law barred them from marriage and refused to recognize their marriages from other states throughout the entire span of their relationship.

The petition for rehearing argues that the court's decision is also unconstitutional because it unlawfully discriminates against individuals for being in non-marital relationships even though the U.S. Supreme Court held that such relationships are constitutionally protected in Lawrence v. Texas. According to the petition, the Court's ruling "targets unmarried couples for discriminatory treatment with pinpoint precision, based solely on their exercise of their constitutionally protected right to enter into a non-marital intimate relationship."

"We are deeply concerned by the court's decision, which openly discriminates against same-sex couples who were unable to marry before their relationships ended and, more broadly, against all unmarried couples," said NCLR Legal Director Shannon Minter, who argued the case before the Illinois Supreme Court. "The Court's decision puts our client and many other former same-sex partners in an impossible double-bind, penalizing them for failing to marry even though Illinois law barred them from the right to marry during the entire span of their relationship."

Added Minter: "The decision also perpetuates an outdated and impermissible stigma against non-marital families. In this day and age, it is incredible—and appalling—that a state supreme court would endorse such blatant discrimination against unmarried couples. Whether a couple decides to marry or not, all of us are equal before the law. The 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. We hope the Court will reconsider its ruling and ensure that Illinois law is complying with our nation's Constitution."

The Court's August 18, 2016 ruling affirmed the discriminatory policy established in 1979 by the Illinois Supreme Court in Hewitt v. Hewitt, 77 Ill.2d 49, at a time when Illinois still criminalized cohabitation outside of marriage. Hewitt held that former unmarried partners cannot enforce either written or unwritten property agreements or bring any other type of legal claims about property when their relationships end. In its recent ruling, the Illinois Supreme Court rejected the argument that Hewitt is outdated and conflicts both with the constitutional protection now given to unmarried relationships and with current Illinois legislative policies mandating equal treatment of all families.

In a strong dissent, Justice Theis, joined by Justice Burke, said that Hewitt should be overturned: "The court's decision in that case was clouded by an inappropriate and moralistic view of domestic partners who cohabit and founded upon legal principles that have changed significantly." The dissent criticized the majority opinion for disregarding major changes in Illinois law, including the elimination of any criminal penalties for non-marital intimacy, and for relying on Hewitt's "near-defamatory" condemnation of unmarried couples.

As the dissent also noted: "Illinois is a clear outlier on this issue . . . Hewitt must be overruled because it is outmoded and out of touch with contemporary experience and opinions on cohabitation."

The overwhelming majority of states allow property-division claims between unmarried partners. The Court's decision leaves Illinois among only three states that do not recognize such claims.

The lawsuit began in 2010, when Brewer's former partner, Blumenthal, sought to retain an unfair portion of their shared home and assets. Although the couple had built a life together, intertwining their finances, sharing a home, and raising three children, the trial court applied the Hewitt decision to rule that Eileen could not bring a lawsuit for her fair share of their property because the couple had not been married. The opinion affirms the trial court's ruling.

NCLR and Chicago Attorney Angelika Keuhn represent Eileen Brewer. Professor Nancy Polikoff, Lambda Legal Defense & Education Fund, and the ACLU of Illinois filed an amicus brief urging reversal of Hewitt.

Because the case raises federal constitutional claims, review by the U.S. Supreme Court is possible. Brewer is considering whether to ask the Supreme Court to review the decision.

Download the petition and learn more at www.NCLRights.org/Brewer .

The National Center for Lesbian Rights is a national legal organization committed to advancing the human and civil rights of the lesbian, gay, bisexual, and transgender community through litigation, public policy advocacy, and public education. www.NCLRights.org .


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