John Roska: New law on gay marriage tweaks law on civil union

John Roska: New law on gay marriage tweaks law on civil union

Q: Did legalizing gay marriage in Illinois change civil unions? Can you still get one? Can a couple who already have a civil union get married, too?

A: The new marriage law revisions don't abolish the old civil union law. You can still get a civil union. And couples who already have a civil union can keep it, convert it into a marriage, or wait and get married later.

In 2011, the Religious Freedom Protection and Union Act allowed anyone who could get married — and same-sex couples — to get a civil union. The processes for getting a civil union and a marriage are nearly identical, but they involve different licenses and result in different certificates. The legal rights for the parties, however, are the same.

In particular, the law says that a "party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses."

Right now, Illinois law says that only "a marriage between a man and a woman" is valid. On June 1, 2014, that will be changed by the new Religious Freedom and Marriage Fairness Act to say that a "marriage between two persons" is valid.

The new law tweaks the old civil union law to provide for a "voluntary conversion of civil union to marriage." That can be done two ways.

One way is for the parties to a civil union to marry each other. They apply for a marriage license (the fee is waived) and have their marriage "solemnized" and registered.

The second way is available for only one year, starting June 1, 2014. It skips a new license and ceremony, and simply redesignates the union as a marriage.

For this second way, the parties to the civil union just apply for a marriage certificate from the county clerk. Their signatures on that certificate "shall be sufficient to convert the civil union into a marriage."

When a civil union is converted into a marriage during this one-year period, the marriage is "deemed effective on the date of the solemnization of the civil union." That effectively backdates the marriage to the date of the civil union.

If the parties to a civil union don't voluntarily convert it to a marriage, they still have a civil union.

The "Religious Freedom" part of both the civil union and Marriage Fairness Act comes from provisions saying that neither law shall "interfere with or regulate the religious practice of any religious body."

In particular, a religious body is "free to choose whether or not to solemnize or officiate a civil union," and "free to choose which marriages it will solemnize." Nobody, and no religious facility, can be required to perform a civil union or same-sex marriage, or be held liable if they don't.

Background: In 1996, the federal Defense of Marriage Act prohibited federal benefits to same-sex spouses. That same year, Illinois added a new section to the Marriage and Dissolution of Marriage Act saying that a "marriage between two individuals of the same sex is contrary to the public policy of this State."

Last June, the Supreme Court held the federal law unconstitutional. Next June 1, that state policy will be repealed legislatively.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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