Achieving LGBTQ Equality Through Litigation, Legislation, Policy, and Public Education

Case Summary & History

Relationship Recognition

Case: Blumenthal v. Brewer

STATUS: Loss, Illinois

The National Center for Lesbian Rights (NCLR) and Chicago Attorney Angelika Kuehn are representing Eileen Brewer, in a case seeking to end discrimination against unmarried couples that prevents them from accessing the same legal remedies that are open to others. Illinois courts currently bar unmarried couples from enforcing property disputes when they break up because of a 1979 ruling by the Illinois Supreme Court, Hewitt v. Hewitt, 77 Ill.2d 49 (1979), which was based on outdated laws that previously criminalized and penalized non-marital relationships.

Eileen and her partner Jane built a life together over 26 years, intertwining their finances, sharing a home and raising three children.  While her partner was the primary breadwinner, Eileen was first and foremost responsible for tending to the home and children. When their relationship ended, Jane sought to retain an unfair portion of their shared home and assets.  The trial court dismissed Eileen’s claims that their joint property should be fairly divided, holding that the Hewitt rule prevents unmarried couples from having any property or contract rights against each other.

The lawsuit argues that unmarried couples should have the same property and contract rights as all others, that the Hewitt case is no longer in effect because Illinois law and policy has completely changed since 1979 and now recognizes many rights for unmarried couples, and that enforcing the Hewitt case would violate the United States and Illinois Constitutions’ guarantees of equal protection and due process.

On December 19, 2014, the Court of Appeals for the First District ruled that courts may not discriminate against unmarried couples by preventing them from enforcing property claims against one another when they break up. In the unanimous decision, written by Justice Margaret Stanton McBride, held that Illinois’ “public policy to treat unmarried partnerships as illicit no longer exists” and that Brewer may “proceed with her claims against her former domestic partner” regarding the shared property they built up during their 26 years together.

Blumenthal sought review from the Illinois Supreme Court, which the Court granted on March 25, 2015. On August 18, 2016, the Court reversed the Court of Appeals, holding that Hewitt “remains good law.” The court rejected the argument that Hewitt is outdated and conflicts both with the constitutional protection now given to unmarried relationships and with Illinois’ current legislative policies mandating equal treatment of all families.

On September 8, 2016, Brewer asked the Illinois Supreme Court to rehear its August 18, 2016 decision. The petition for rehearing argues that the Illinois Supreme Court’s decision fails to address a central legal issue in the case—whether it violates the constitution to penalize same-sex couples for being unmarried even though they were legally unable to marry during the entire span of their relationship. According to the petition, the Court’s ruling punishes same-sex partners “for failing to enter into a relationship from which they were legally barred, based on laws that have now been recognized to be discriminatory and unfair.”

The Illinois Supreme Court’s decision initially addressed the constitutionality of applying its rule to former same-sex partners in a paragraph that was subsequently removed from the official opinion. In its initial decision, the court said that Brewer should have tried to marry in another state or brought a lawsuit challenging Illinois’s marriage ban. Shortly after issuing its decision, the court deleted that part of its ruling. The final amended opinion does not address Brewer’s claim that it violates the federal Constitution for Illinois to penalize same-sex couples for being unmarried, when Illinois law barred them from marriage and refused to recognize their marriages from other states throughout the entire span of their relationship.

The petition for rehearing argues that the court’s decision is also unconstitutional because it unlawfully discriminates against individuals for being in non-marital relationships even though the U.S. Supreme Court held that such relationships are constitutionally protected in Lawrence v. Texas. According to the petition, the Court’s ruling “targets unmarried couples for discriminatory treatment with pinpoint precision, based solely on their exercise of their constitutionally protected right to enter into a non-marital intimate relationship.”

Read the Sept. 8, 2016 Petition for Rehearing

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