Legal Analysis of HB 1826, Illinois’ ‘Civil Union’ Bill: ‘Same-Sex Marriage’ ‘in All but Name’

Linton: HB 1826 would “empty the institution of marriage of all substance” 

Memorandum

Date:  March 19, 2007

To:  Illinois pro-family groups, including Illinois Citizens for Life, Americans For Truth, Illinois Family Institute, CWA of Illinois, and Real Civil Rights Illinois

From: Paul Linton, Esq.

Re:  Analysis of Amendment No. 1 to House Bill 1826

Introduction

Amendment No. 1 to House Bill 1826, if enacted by the General Assembly, would create civil unions in Illinois for both same-sex and opposite-sex couples.  The Amendment would “deconstruct” the meaning of marriage in two vital respects:

First, it would allow same-sex couples to enjoy “all the same protections, benefits, and responsibilities under law . . . as are granted to spouses in a marriage.” § 105(a).  This is contrary to the longstanding public policy of Illinois (and, until very recently, every other State in the Union and every other country in the world) to confer such “protections, benefits, and responsibilities” only upon married couples who, by definition and the very nature of marriage, are opposite-sex. 

Second, it would allow opposite-sex couples to enjoy “all the same protections, benefits, and responsibilities under law . . . as are granted to spouses in a marriage,” § 105(a),  see also §§ 105(c), 106, 201, without actually being married, a legislative novelty that has not been adopted in any other State, including those States that have enacted civil unions statutes (Connecticut, New Jersey and Vermont) or their equivalent (California’s Domestic Partner Act).  Opposite-sex couples (who, of course, may marry under current law) are included for the twin purposes of diluting the meaning of marriage and blurring the distinction between opposite-sex and same-sex relationships (by calling them by the same name).

Amendment No. 1 would empty the institution of marriage of all substance, leaving only an empty form (i.e., the name, “marriage”) as a “consolation prize” for those who oppose same-sex “marriage.”  Marriage, however, is more than a name–it is an institution that is fundamental to the existence and continuity of societies throughout history, in all times and places.
 
Legal Land Mines

Apart from the public policy reasons for opposing Amendment No. 1, which are discussed below, there are legal reasons for opposing the Amendment, as well. 

To begin with, the title of the bill that would be enacted by Amendment No. 1, the “Illinois Religious Freedom Protection and Civil Unions Act,” is deceptive and misleading.  In an effort to allay concerns about the bill’s impact on religious practices, the very first substantive section addresses “Religious Freedom.” § 102.  The “protection” offered by § 102, repeated in § 209(b), however, is negligible. Essentially, §§ 102 and 209(b), taken together, protect “religious practice” from interference and permit any “religious body” and “officiant thereof” to refuse to “solemnize or officiate a civil union.”  But the “protection” afforded by the bill extends only to “religious practice,” which is already secured by the religious freedom provisions of the state and federal constitutions, not practices based on moral considerations.  In other words, although a religious body may refuse to perform civil unions, it may not refuse to recognize civil unions performed by others, notwithstanding any moral objections it may have to civil unions.  This is apparent not only from the overall structure of the bill, but, more specifically, from § 105 (describing the “Protections and Responsibilities of Persons Joined in Civil Union”).  Section 105(e)(12) lists, as one of the “legal protections, benefits, and responsibilities of parties to a marriage, which applies in like manner to parties to a civil union,” “Prohibitions against discrimination based upon marital status under the Illinois Human Rights Act.”  So, for example, a church or other institution that has moral objections to (same-sex) civil unions would have to offer the same benefits to a partner in a civil union that are given to married persons.  No church could discriminate against a same-sex couple joined in a civil union.  Another example involves religiously-based adoption agencies.  Under Amendment No. 1, such agencies would have to offer adoption services to same-sex couples in civil unions.  This is not an imaginary issue.  In Massachusetts, Catholic Charities, operating the largest adoption agency in the Commonwealth, had to cease providing adoption services after Massachusetts recognized same-sex “marriages.”  If Amendment No. 1 is enacted and Illinois recognizes same-sex civil unions, it will require religiously-based adoption services in Illinois to provide such services to same-sex couples in civil unions or cease their operations.  Such obvious legal coercion of moral conscience should not be concealed in the guise of “Religious Freedom Protection.”
 
An even greater concern about Amendment No. 1 is how it would be used as a battering ram to knock down the prohibition of same-sex “marriage” in Illinois. Amendment No. 1 is replete with legislative findings that purport to recognize a constitutional basis for (same-sex) civil unions.  Section 103(a), for example, recites that “same-sex couples and their children are denied equal access to [the] protections and responsibilities” available to “opposite-sex couples.”  Emphasis added.  The use of the phrase “equal access” implies that the denial of such access violates the equal protection guaranty of the Illinois Constitution.  Section 103(d) presents the flip side of the same concept, asserting that “There is a compelling interest and a rational basis for Illinois to permit same-sex couples the same protections and responsibilities afforded spouses under Illinois law.”  Emphases added.  The italicized terms come straight out of the equal protection lexicon.  The “finding” that there is “a compelling interest” in extending to same-sex couples “the same protections and responsibilities afforded spouses under Illinois law” suggests that the failure to extend such protections and responsibilities to same-sex couples somehow violates equal protection.  All of the foregoing is made explicit by § 103(e), which states:

With this Act, Illinois builds on a long tradition of respect for individual rights and responsibilities, the commitments of spouse to each other and their families, and equal protection of the laws.  Accordingly, it is the public policy of this State to continue Illinois’ history as a state in affording equal treatment and respect for all residents of Illinois as embodied in Article I, Sections 2 and 18 of the Illinois Constitution of 1970.

Emphasis added.  Article I, § 2, is the due process and equal protection guaranty, and § 18 is the equal rights provision.  The finding set forth in § 103(e) could be used, in conjunction with the findings set forth in §§ 103(a) and (d), in support of a lawsuit challenging the reservation of the name of “marriage” to opposite-sex couples.  The legislative findings set forth in § 103 could be used in an effort to persuade a state court that, under the Illinois Constitution, there is no justifiable reason to reserve marriage to opposite-sex couples.  Similar findings in the California Domestic Partner Act have been used for precisely that purpose.  See In re Marriage Cases, 49 Cal. Rptr. 3d 675, 709 n. 22 (Ct. App. 2006).  Although the California Court of Appeal narrowly upheld the marriage statutes, that judgment has been appealed to and is now under review by the California Supreme Court.
 
Apart from the legislative findings in Amendment No. 1, the conferring of all of the rights and benefits of marriage couples entering civil unions (same-sex or opposite sex) would seriously undermine the effort to maintain any distinction between what would then remain of “marriage” (its name) and civil unions.  After all, if there are no differences in rights and benefits (and both opposite-sex and same-sex couples may enter civil unions), on what possible grounds could the name “marriage” be reserved for opposite-sex couples?  State supreme courts that have determined, as a matter of state constitutional law, that same-sex couples are entitled to the same rights and benefits as married opposite-sex couples, have split on this question.  Two have held that a civil union is an adequate alternative to civil marriage, so long as all of the rights and benefits of marriage are conferred.  See Baker v. State, 744 A.2d 864 (Vt. 1999); Lewis v. Harris, 908 A.2d 196 (N.J. 2006).  One has held that not even the name “marriage” may be used to distinguish opposite-sex unions from same-sex unions.  See Opinions of the Justices, 802 N.E.2d 565 (Mass. 2004), an advisory opinion of the Massachusetts Supreme Judicial Court issued in the aftermath of its decision in Goodridge v. Dep’t of Public Health, 798 N.E.2d 941 (Mass. 2003), striking down the Commonwealth’s marriage laws [see Endnote 1].   The New Jersey decision turned on a single vote.  Three of the seven justices were prepared to order New Jersey to confer the form of marriage, as well as its substance, on same-sex unions.

To date, most state reviewing courts have rejected state constitutional challenges to state laws reserving marriage to opposite-sex couples.  Nevertheless, there is no question that the more “rights and benefits” legislatures confer upon homosexuals, whether individually or jointly, the more difficult it becomes to defend traditional marriage.  See Lewis v. Harris, 908 A.2d at 215 (“this State’s decisional law and sweeping legislative enactments, which protect gays and lesbians from sexual orientation discrimination in all its virulent forms, provide committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples”).  For example, despite the commonsense view that children generally thrive and do best in an environment in which both their father and mother are present –– a view supported by social science research –– state laws allowing joint adoptions by unmarried same-sex couples (which is permitted in a minority of States) undermine an asserted interest in dual gender parenting.  See Lewis, 908 A.2d at 212-15; Goodridge, 798 N.E.2d at 962-64.  Yet such adoptions would be allowed by Amendment No. 1.  See § 105(11) (identifying “[a]doption laws and procedures under the Adoption Act”).  The impact of such legislation on the ability of the State to draw a meaningful distinction between opposite-sex and same-sex couples (for any purpose) is not hard to predict.  In Baker v. State, the Vermont Supreme Court acknowledged that in reserving marriage to opposite-sex couples, “the Legislature could conclude that opposite-sex partners offer advantages in this area [childrearing].”  744 A.2d at 884.  “The argument, however, contains a . . . fundamental flaw, and that is the Legislature’s endorsement of a policy diametrically at odds with the State’s claim.”  Id.

In 1996, the Vermont General Assembly enacted, and the Governor signed, a law removing all prior barriers to the adoption of children by same-sex couples. [Citation omitted].  At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parent-child contact in the event that same-sex parents dissolved their “domestic relationship.” [Citation omitted].  In light of these express policy choices, the State’s argument[] that Vermont public policy favors opposite-sex over same-sex parents . . . [is] patently without substance.

Id. at 884-85.  Even in decisions that have upheld state marriage laws, dissenting judges have pointed to the laws in those States allowing same-sex couples to adopt and/or raise children together as a reason for challenging the asserted state interest in dual gender parenting.  See, e.g, Hernandez v. Robles, 855 N.E.2d 1, 32 (N.Y. 2006) (Kaye, C.J., dissenting); Andersen v. King County, 138 P.3d 963, 1018-19 (Wash. 2006) (Fairhurst, J., dissenting).  It should be apparent from the foregoing that legislation that obliterates any distinctions in the law between opposite-sex couples and same-sex couples jeopardizes the uniqueness of marriage.

Another problem raised by Amendment No. 1 may be found in § 105(f):

To the extent any of the laws of Illinois adopt, refer to, or rely upon provisions of federal law as applicable to this State, partners in a civil union shall be treated under the law of this State as if federal law recognized a civil union in the same manner as the law of this State.

Depending upon its interpretation, this provision presents at least the possibility of conflict with the federal Defense of Marriage Act, under which federal statutes, administrative rules and other sources of law recognize as “marriage” only opposite-sex unions, not same-sex unions.  The State of Illinois obviously cannot overturn or limit the scope of the federal DOMA, yet the concluding phrase of § 105(f), treating partners in a civil union “as if federal law recognized a civil union,” purports to mandate what DOMA prohibits.

Policy Considerations

Entirely apart from the foregoing legal and constitutional implications of Amendment No. 1, there are policy considerations to be taken into account.  Should the rights and benefits of marriage be bestowed upon same-sex couples?  Or are there serious reasons why such a radical change in public policy should be deferred, if not denied?   

On July 6, 2006, the New York Court of Appeals (New York’s highest court) upheld the constitutionality of the Domestic Relations Law which reserves marriage to opposite-sex couples.  The court held that reserving marriage to opposite-sex couples was reasonably related to at least two legitimate state interests:  “First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships” because “[h]eterosexual intercourse has a natural tendency to lead to the birth of children,” while “homosexual intercourse does not.”  Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006).  Second, “[t]he Legislature could also rationally believe “that it is better, other things being equal, for children to grow up with both a mother and father.”  Id. 

Less than three weeks later, on July 26, 2006, the Washington State Supreme Court upheld the constitutionality of Washington’s  Defense of Marriage Act.  The court held that “limiting marriage to opposite-sex couples furthers the State’s legitimate interests in procreation and encouraging families with a mother and a father and children biologically related to both.”  Andersen v. King County, 138 P.3d 963, 985 (Wash. 2006). The legitimacy of these interests cannot be gainsaid. Moreover, it is (or should be) self-evident that same-sex couples cannot procreate by themselves [see Endnote 2],  or provide dual-gender parenting [see Endnote 3].
 
With respect to the first interest, Justice Robert Cordy of the Massachusetts Supreme Judicial Court, said in his dissent in Goodridge v. Dep’t of Public Health (cited above):

          Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized.  Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined . . . , but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth.  The institution of marriage is that mechanism.

 

         The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other.  The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed.  Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child.  Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child.  The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood.  The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.

Goodridge, 798 N.E.2d at 995-96 (Cordy, J., dissenting) (internal citations and footnote omitted).
 
With respect to the second interest (dual-gender parenting), Justice Cordy wrote:

Taking all . . . available information into account, the Legislature could rationally conclude that a family environment with married opposite-sex partners remains the optimal social structure in which to bear children, and that the raising of children by same-sex couples, who by definition cannot be the two sole biological parents of a child and cannot provide children with a parental authority figure of each gender, presents an alternative structure for child rearing that has not yet proven itself beyond reasonable scientific dispute as to be as optimal as the biologically based marriage norm.

Id  at 999-1000 (Cordy, J., dissenting).   A same-sex family structure “raises the prospect of children lacking any parent of their own gender[:]”

For example, a boy raised by two lesbians as his parents has no male parent.  Contrary to the suggestion that concerns about such a family arrangement is based on “stereotypical” views about the differences between the sexes [citation omitted], concerns about such an arrangement remains rational.  It is, for example, rational to posit that the child himself might invoke gender as a justification for the view that neither of his parents “understands” him, or that they “don’t know what he is going through,” particularly if his disagreement or dissatisfaction involves some issue pertaining to sex.  Given that same-sex couples raising children are a very recent phenomenon, the ramifications of an adolescent child’s having two parents but not one of his or her own gender have yet to be fully realized and cannot yet even be tested in significant numbers.

Id. at 1000 n. 29.

In light of the foregoing considerations, the legislature could assume that “a recognition of same-sex marriages will increase the number of children experiencing this alternative,” and “conceivably conclude that declining to recognize same-sex marriages remains prudent until empirical questions about its impact on the upbringing of children are resolved.”  Id. at 1000 (Cordy, J., dissenting).

The fact that the Commonwealth currently allows same-sex couples to adopt . . . does not affect the rationality of this conclusion.  The eligibility of a child for adoption presupposes that at least one of the child’s biological parents is unable or unwilling, for some reason, to participate in raising the child.  In that sense, society has “lost” the optimal setting in which to raise that child–it is simply not available.  In these circumstances, the principal and overriding consideration is the “best interests of the child,” considering his or her unique circumstances and the options that are available for that child.  The objective is an individualized determination of the best environment for a particular child, where the normative social structure––a home with both the child’s biological father and mother––is not an option.  That such a focused determination may lead to the approval of a same-sex couple’s adoption of a child does not mean that it would be irrational for a legislator, in fashioning statutory laws that cannot make such individualized determinations, to conclude generally that being raised by a same-sex couple has not yet been shown to be the absolute equivalent of being raised by one’s married biological parents.

Id. at 1000. 

What, ultimately, is the essential purpose for which society recognizes and privileges the institution of marriage?  In Goodridge, the Massachusetts Supreme Judicial Court answered that the exclusive and permanent commitment of the marriage partnership rather than the begetting of children is the sine qua non of civil marriage, 798 N.E.2d at 961-62, and added that “the ‘marriage is procreation’ argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.”  Id. at  962.  But, as Justice Cordy noted, “The court has it backward.”

Civil marriage is the product of society’s critical need to manage procreation as the inevitable consequence of intercourse between members of the opposite sex.  Procreation has always been at the root of marriage and the reasons for its existence as a social institution.  Its structure, one man and one woman committed for life, reflects society’s judgment as to how optimally to manage procreation and the resultant child rearing.  The court, in attempting to divorce procreation from marriage, transforms the form of the structure into its purpose.  In doing so, in turns history on its head.

Id. at 1002 n. 34.  See also Morrison v. Sadler, 821 N.E.2d 15, 28-31 (Ind. Ct. App. 2005) (same) [see Endnote 4].

Conclusion

In all but name, Amendment No. 1 would recognize same-sex “marriages” in Illinois.  But recognition of such “marriages,” denominated as “civil unions,” would not promote either of the legitimate state interests set out above.  Moreover, by blurring, if not obliterating, the line between opposite-sex and same-sex unions. Amendment No. 1 would make it far more difficult to retain even the name of “marriage” for opposite-sex unions.  There is no need to confer the rights and benefits of opposite-sex unions (marriages) upon same-sex unions (“civil unions’).  Furthermore, enactment of Amendment No. 1 would seriously interfere with the religious liberty of churches to maintain their moral objections to same-sex unions in a wide range of areas, including adoption services and employment benefits.

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Endnotes

  1. A fourth case involving a civil union statute and state marriage laws is pending in the Connecticut Supreme Court.  See Kerrigan v. Comm’r.
  2. See Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974) (“marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race” and “no same-sex couple offers the possibility of the birth of children by their union”); Dean v. District of Columbia, 653 A.2d 307, 337 (D.C. App. 1995) (finding that this “central purpose . . . provides the kind of rational basis . . . permitting limitation of marriage to heterosexual couples”); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005) (“[b]ecause procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest”), aff’d in part, vacated in part and remanded with directions to dismiss for lack of standing, 447 F.3d 673 (9th Cir. 2006); Adams v. Howerton, 486 F.Supp. 1119, 1123 (C.D. Cal. 1980) (because “[t]he legal protection and special status afforded by marriage (being defined as the union of persons of different sex) has historically . . . been rationalized as being for the purpose of encouraging the propagation of the race”), aff’d 673 F.2d 1036 (9th Cir. 1981); Standhardt v. Superior Court, 77 P.3d 451, 463 (Ariz. Ct. App. 2003): “Indisputably, the only sexual relationship capable of producing children is one between a man and a woman.  The State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children.  Because same-sex couples cannot by themselves procreate, the State could . . . reasonably decide that sanctioning same-sex marriages would do little to advance the State’s interest in ensuring responsible procreation within committed, long-term relationships.”
  3. See Lofton v. Kearney, 157 F.Supp.1372, 1383 (S.D. Fla. 2001) (“a child’s best interest is to be raised in a home stabilized by marriage, in a family consisting of both a mother and a father”), aff’d sub nom. Lofton v. Secretary of the Dep’t of Children & Family Services, 358 F.3d 804,  819 (11th Cir. 2004) (legislature may reasonably assume that “children benefit from the presence of both a mother and a father in the home”), cert. denied, 125 S.Ct. 869 (2005).  See also Wilson v. Ake,  354 F.Supp. 2d 1298, 1309 (M.D. Fla. 2005) (“encouraging the raising of children in homes consisting of a married mother and father is a legitimate state interest”); Smelt,  374 F.Supp. 2d at 880 (“[e]ncouraging the optimal union for rearing children by both biological parents is . . . a legitimate purpose of government”); In re Kandu,  315 B.R. 123, 146 (Bankr. W.D. Wash. 2005) (recognizing authority “that the promotion of marriage to encourage the maintenance of stable relationships that facilitate to the maximum extent possible the rearing of children by both of their biological parents is a legitimate congressional concern”). 
  4. Goodridge, it must be emphasized, is the only state or federal reviewing court decision to hold the reservation of marriage to opposite-sex couples unconstitutional and to require (per the court’s later advisory opinion) the Commonwealth to recognize same-sex “marriages,” not just civil unions, as were mandated in New Jersey and Vermont.  The reasoning of the majority opinion in Goodridge has been roundly and extensively criticized by both state and federal courts.

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Paul Linton Biographical Sketch

Paul Linton is an attorney in private practice in the Chicago area. He has
been professionally engaged in the pro-life and pro-family movement for more
than seventeen years, first at Americans United for Life, where he was General
Counsel, then in his own practice since 1997. Mr. Linton has represented friendsof-
the-court in landmark beginning-of-life and end-of-life cases in the United
States Supreme Court, including Webster v. Reproductive Health Services (1989),
Cruzan v. Director of the Missouri Department of Health (1990), Planned
Parenthood v. Casey (1992), Washington v. Glucksberg (1997), Vacco v. Quill
(1997), Stenberg v. Carhart (2000), Ayotte v. Planned Parenthood of Northern
New England (2006), Gonzales v. Oregon (2006), Gonzales v. Carhart (pending)
and Gonzales v. Planned Parenthood Federation of America (pending), as well as
most of the federal circuit courts of appeals and almost one-half of all state
reviewing courts. He has worked closely on pro-life and pro-family litigation with
more than one-third of all the state Attorneys General in the United States. He has
drafted or reviewed pro-life legislation in dozens of States and has testified on
pro-life bills before legislative committees in several States.

Mr. Linton has filed friend-of-the-court briefs defending the traditional
understanding of marriage as the union of one man and one woman in same-sex
“marriage” cases in California (forthcoming), Connecticut, Indiana, Maryland,
Massachusetts, Nebraska, New Jersey, New York, Oregon and Washington. He
has also published several law review articles on state equal rights amendments
and same-sex “marriage.” Mr. Linton received his undergraduate (B.A. Honors)
and law (J.D.) degrees from Loyola University of Chicago.