Reversing a ruling by the state’s court of appeals, the Illinois Supreme Court ruled on August 18 that the state’s statutory prohibition of common law marriage, enacted a century ago, still “precludes unmarried cohabitants [including same-sex couples] from bringing claims against one another to enforce mutual property rights where the rights asserted are rooted in a marriage-like relationship between the parties.” Although two different panels of the state’s intermediate court of appeals have rejected this view as outmoded, in this and another case recently reported, the Supreme Court voted 5-2 in Blumenthal v. Brewer, 2016 IL 118781, 2016 Ill. LEXIS 763, to reaffirm a 1979 decision that had refused to follow the then-recent trend in some other states to allow “implied contract” and other common law claims when an unmarried couple breaks up.
Justice Lloyd Karmier wrote the opinion for the court. Justice Mary Jane Theis dissented in relevant part, joined by Justice Anne M. Burke.
Dr. Jane E. Blumenthal and Judge Eileen M. Brewer had lived together since 1981 as domestic partners, sharing a home, raising children, and pooling their resources to buy property and to invest in a medical practice for Dr. Blumenthal. They broke up in 2010, before Illinois passed a civil union law and, of course, before the ultimate arrival of marriage equality in Illinois. At the time of their breakup, Dr. Blumenthal filed a petition in the circuit court in Chicago for “a fair division and partition of property to be made between the parties according to their respective rights and interests,” including the possibility that the property be sold and the proceeds divided “according to their respective rights or interests in such proceeds as ascertained and declared” by the court.
Brewer responded with a counterclaim, reciting the women’s past relationship as “identical in every essential way to that of a married couple,” asking the court in effect to handle the assets like the joint assets of a married couple, taking into account such things as the value of the medical practice (as would be done in a divorce case involving a doctor) and the value of services rendered and decisions made within the scope of the relationship, such as Brewer having sublimated her own career in supporting Dr. Blumenthal in establishing her medical practice.
The trial court rejected Brewer’s claim and divided up the real property along non-marital equitable lines based on the financial contributions for acquisition of the property. That court relied on the Illinois Supreme Court’s 1979 ruling in Hewitt v. Hewitt, 77 Ill. 2d 49, which had rejected a similar claim by a woman who had cohabitated with her male partner for many years and sought to be treated like a spouse in distributing assets upon their break-up. Brewer’s appeal was received favorably by the court of appeals which, while acknowledging that the Illinois Supreme Court had never overruled Hewitt v. Hewitt, nonetheless concluded that the decision had become obsolete due to subsequent developments. The appeals court pointed out that many of the legal principles relied on by the Supreme Court in Hewitt, such as a statute criminalizing unmarried cohabitation, had changed over the intervening thirty-plus years, also including such statutory developments as adoption of no-fault divorce, a statute providing inheritance rights for children of unmarried couples, enactment of the civil union law and, ultimately, marriage equality (which was achieved legislatively in Illinois after the Supreme Court struck down the federal Defense of Marriage Act). The court of appeals ordered that the case be sent back to Cook County Circuit Court to reconsider Brewer’s claims.
This time Blumenthal appealed, winning a majority of the state Supreme Court, which observed as a starting point that the court of appeals does not have the authority to overrule a decision by the Supreme Court. Its proper path would have been to apply Hewitt, accompanied by a suggest that Brewer appeal, and perhaps urging the Supreme Court to reconsider its ruling.
Justice Karmeier pointed out that Hewitt had continued to be cited and relied upon by Illinois courts throughout the intervening period. Karmeier noted that in Hewitt itself the court had stated that it was up to the legislature to decide whether some legal rights should be made available to unmarried co-habitants. As the court of appeals pointed out, the legislature had indeed passed several statutes updating Illinois domestic relations law in various ways, but it had never actually overruled the Hewitt decision or rescinded the state’s absolute ban on common law marriage, even though the legislature was clearly aware of the Hewitt ruling.
In an ironic move, Karmeier quoted from U.S. Supreme Court Justice Anthony Kennedy’s marriage equality opinion, Obergefell v. Hodges, which emphasized the importance and centrality of marriage as a social and legal institution. Karmeier observed that Illinois’ ban on common law marriage was passed to bolster marriage by requiring people to marry if they wanted access to marital rights. If anything, he asserted, Obergefell encouraged the majority of the court to resist extending marital rights to an unmarried couple, which would be contrary to the policy of encouraging and bolstering the institution of marriage by preserving that rights that it afforded to couples who married.
The court of appeals emphasized that throughout the duration of the Blumenthal-Brewer relationship, Illinois had not allowed same-sex couples to marry, which that courtt contended would justify treating them differently from the opposite-sex couple in the Hewitt case, who could have married. Karmeier found this argument unavailing, pointing out that the record in this case shows that Blumenthal and Brewer actually obtained a marriage license in Massachusetts in 2005, but never went through with the ceremony. Furthermore, he pointed out, Edith Windsor and her lesbian partner went to Canada in 2007 to marry at a time when New York would not allow them to do so, with Edith then suing the federal government for refusing to treat her as a surviving spouse for tax purposes. That is, for several years towards the end of their relationship, there were ways that Blumenthal and Brewer could have married – even if Illinois would not then have recognized the marriage – but they didn’t do so. Had they done so, Brewer might have raised a constitutional argument in support of her property rights claim, but in the absence of any such attempt, the court would not recognize her argument that denying her this recognition now violated her due process or equal protection rights.
In dissent, Justice Theis argued that the majority had mischaracterized Hewitt, an outmoded precedent that should be overturned. Hewitt “etched into the Illinois Reports the arcane view that domestic partners who choose to cohabit, but not marry, are engaged in ‘illicit’ or ‘meretricious’ behavior at odds with foundational values of ‘our family-based society,’” she wrote. “’Meretricious’ means ‘of or relating to a prostitute’ [Webster’s Third New International Dictionary 1413 (1986)], so this court labeled such people as prostitutes. The majority’s attempt to distance itself from Hewitt’s sweeping and near-defamatory statement is unconvincing.” She went on to show how the majority opinion “perpetuated the most offensive and outmoded assumptions underlying the Hewitt decision.”
Also, characterizing Hewitt as an “outlier” among the states, she included a long string of citations to cases from other states in which courts had developed the common law to protect legitimate property interests of unmarried cohabitants when parties of unequal means ended their relationships. She asserted that only Georgia and Louisiana have rulings similar to Hewitt still in effect. “Courts in a vast majority of the remaining states, as well as the District of Columbia, that have chosen not to recognize common-law marriages also have chosen to recognize claims between former domestic partners like Blumenthal and Brewer,” she wrote. Furthermore, “the recognition of claims between domestic partners has not revived the doctrine of common-law marriage in jurisdictions that have abolished it.”
“Hewitt must be overruled because the legal landscape that formed the background for our decision has changed significantly,” she wrote, reciting the lengthy list of the changes that the Illinois legislature and courts had made to the framework of law surrounding unmarried couples since 1979. She rejected the majority’s holding that claims like Brewer’s would be inappropriate under existing Illinois marriage statutes or would undermine the institution of marriage.
Because Brewer did attempt to assert federal due process and equal protection claims in this appeal, she could seek review from the U.S. Supreme Court. However, that Court would abstain from deciding any questions of state law, as to which the Illinois Supreme Court has the last judicial word. Justice Karmeier did mention that in Hewitt, the Court implicitly invited the state legislature to consider whether the legal rights of unmarried cohabitants should be expanded. This new decision effectively reiterates that invitation.
Attorneys for the National Center for Lesbian Rights and Chicago Attorney Angelika Keuhn represented Judge Brewer in her quest for equitable treatment in the wake of end of her relationship with Dr. Blumenthal. Professor Nancy Polikoff of American University Law School, a leading advocate for legal recognition of non-traditional families, filed an amicus brief in support of Brewer’s claims on behalf of Lambda Legal and the ACLU.