The Effects of Obergefell on Illinois Couples

 Posted on August 25, 2015 in Divorce

With the recent historic Supreme Court ruling in Obergefell v. Hodges, same-sex marriage is now legal everywhere in the United States. While legal in Illinois for over a year, the effect for couples who may want to move or travel out of Illinois is significant.

Same-Sex Marriage in Illinois

In 2013, the state legislature approved same-sex marriage in Illinois. Effective as of June 2014, the law allows for same-sex marriage while protecting religious liberties and provides that religious groups may choose which marriage ceremonies to perform; they may not be sued if they refuse to perform a same-sex marriage.

Churches, synagogues, mosques and other places used primarily for the practice, study or advancement of religion cannot be required to use their buildings for same-sex marriage events. Declining to provide a space based on religious beliefs provides immunity from civil and criminal liability.

More than 10,400 same-sex couples have wed in Illinois since same-sex marriage was allowed in the state. The recent ruling means that the legislature could never overturn that law.

Obergefell v. Hodges

In a 5-4 decision authored by Justice Kennedy, the Supreme Court approved same-sex marriages nationwide.Obergefell is a combination of four cases addressing bans in Ohio, Michigan, Tennessee and Kentucky. In its ruling, the Court held two important facts: states must recognize same-sex marriages legally performed in other states, and same-sex marriage bans in the four states were unconstitutional. All states must now issue marriage licenses to same-sex couples.

The Fourteenth Amendment, which ensures due process and equal protection under the law, means that states must recognize same-sex marriages. The Court held that the right to marry is a fundamental right, and the state may not deprive same-sex couples of that right.

Effects on Same-Sex Illinois Couples

Prior to the recent ruling, there were 14 states that did not allow same-sex marriage. Yet, it was legal in 36 states, including Illinois and in the District of Columbia. Previously, if a same-sex couple wed in Illinois and moved or traveled to any of those states in which same-sex marriage was not permitted, their marriages would not be recognized.

Not having their marriages recognized in other states meant ineligibility for employer-provided health care and other benefits. Parental rights issues and survivor benefits, among others, may have been be affected. Same-sex spouses may not have been allowed into hospital rooms, and so even vacationers ran risks during travels to other states. Importantly, married same-sex couples who moved to states that did not allow same-sex marriage could not obtain divorces in those states.

Now, however, those issues are mostly resolved. Same-sex couples can travel or move to any state and their marriages will still be recognized. Elderly couples can retire to a different state without worrying. Moreover, same-sex couples who want a divorce can obtain one in whatever state in which they reside.

Same-sex couples still may have problems with discrimination in housing, employment or public accommodations. The opinion in Obergefell does not state that sexual orientation is a protected class nor does it forbid states from discriminating on the basis of sexual orientation.

Navigating the issues surrounding same-sex marriage and divorce may be confusing and difficult with the recent changes in the law. Please contact a skilled Palatine family law attorney at the Law Office of Nicholas W. Richardson, P.C. to schedule an initial consultation.