The Illinois Supreme Court has refused to reconsider its
position that domestic partners do not enjoy the same rights as married couples
when it comes to ending the relationship and dividing assets – but with two
justices dissenting, stating a 1979 high court ruling, on which the majority
relied, is out of date.
In a 5-2 decision Aug. 18, the Illinois Supreme Court
maintained its 1979 Hewitt v. Hewitt decision, which held Illinois law
governing marital relationships and divorce has not changed in the decades
since, and the lack of action by state lawmakers to do anything about it should
be taken to mean the “legislature intended marriage to be the only legally
protected family relationship under Illinois law.”
Upon request of the appellee, the state Supreme Court
refused to reexamine the ruling by the identical 5-2 margin, with dissent
coming from the same two justices – Mary Jane Theis and Anne Burke.
“Hewitt’s flaws, both linguistic and legal, have become more
apparent with time,” Burke wrote, while Theis described Hewitt as “outmoded and
Justice Lloyd Karmeier, in authoring the majority opinion,
defended the court’s refusal to reconsider Hewitt, by pointing out the effect
of Hewitt is to prevent “unmarried cohabitants from evading the statutory
abolition of common-law marriage.”
Chief Justice Rita B. Garman and justices Charles E.
Freeman, Robert R. Thomas and Thomas L. Kilbride concurred with Karmeier’s
The case centered on the court fight surrounding the end of
a 26?year same?sex domestic partnership between Cook County Judge Eileen Brewer
and Jane Blumenthal, a physician. The couple shared a home in Chicago and
raised children together.
After the relationship soured, they battled in court over
how much money each was entitled to from the potential sale of their assets,
including Blumenthal’s medical practice. Brewer said she had given Blumenthal
money to buy an interest in that medical practice, and so she asked the court
to order Blumenthal to pay her a cut of whatever amount should be generated
from the sale of that interest.
A Cook County circuit court judge, however, rejected
Brewer’s claims, saying Illinois law forbids common law marriage in the state.
As a consequence, unmarried couples whose relationships have ended can’t assert
the same kind of property claims as can divorcing married couples.
The First District Appellate Court of Illinois overturned
the lower court’s ruling in 2014, declaring Hewitt v. Hewitt “outmoded and ill?considered.”
Blumenthal took the case to the Illinois Supreme Court,
which ruled the appellate court lacked authority to toss the supreme court’s
Hewitt decision. Nonetheless, the majority of the Supreme Court went on to
defend Hewitt, by noting that in the 37 years since that ruling, the
prohibition against common-law marriage has “remained completely untouched and
The majority said the question should be left to the General
Assembly and not the courts.
Theis, in her dissent, said the court puts a same-sex
couple, who split – such as Blumenthal and Brewer – in a bind, because they
were barred from marriage during the length of their relationship, but are now
prevented from an equitable division of property, because they were not
The American Civil Liberties Union of Illinois and Lambda
Legal Defense and Education Fund filed friend-of-the-court briefs in favor of