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dividing assets – but with two justices dissenting, stating a 1979 high court ruling, on which the majority relied, is out of date.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 unfair.” 

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 judgment. 

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 unqualified.” 

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 married. 

The American Civil Liberties Union of Illinois and Lambda Legal Defense and Education Fund filed friend-of-the-court briefs in favor of Brewer.

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