I. Lame-Duck Sauce
The Illinois legislature might be on the verge of enacting a full marriage equality law. There’s apparently a rush to get this done in the lame-duck legislative session, which ends next week, but it’s hard to say why, exactly. It looks like the statehouse will have even more equality boosters in the upcoming session, so why give the opponents ammunition (“See how they pushed this through in a lame-duck session!”)?
The Land o’ Lincoln is the fifth-most populous state, so, in addition to underscoring the Zeitgeist-ian1 momentum of the movement, the law would be significant for the sheer number of folks potentially affected. (I’m not so optimistic about my home state of PA, as you can see here.2) But given my borderline-obsessive fixation on civil unions, I wonder what will happen to them. Recall that some of those civilly united in Illinois are opposite-sex couples who chose civil unions over marriage for reasons I detailed in this piece for Slate. They could have married, so presumably many of them — excepting those few who might have chosen the civil union purely out of solidarity with marriage-excluded same-sex couples — want to stay civilly united, and not marry. Well, according to the version of the legislation I read, they can stay civilly united, and that status will continue to be available, to both straight and gay couples hereafter. Fascinating, especially since one of my assumptions might not be correct.
II. A Taxing Issue
Since there’s no such thing as a federal civil union, I wasn’t alone in thinking that opposite-sex couples in civil unions were really giving up something big: their right to receive federal benefits. Same-sex couples can’t get ‘em anyway, thanks (but no thanks!) to the Defense of Marriage Act, so it seemed clear that the demise of DOMA — as seems likely this year — would put the lie to the claim that civil unions were “really just like marriage.”
I didn’t reckon with an informal IRS letter, sent in 2011 from an IRS “Senior Technician Reviewer” to a tax advisor for H&R Block. The Service was asked whether an opposite-sex couple in an Illinois civil union could file a joint federal tax return. Answer: “In general, the status of individuals of the opposite sex living in a relationship that the state would treat as husband and wife is, for Federal income tax purposes, that of husband and wife….Accordingly, if Illinois treats the parties to an Illinois civil union who are of opposite sex and as husband and wife, they are [so considered under the Code], and are not precluded from filing jointly.
OK, it’s just one letter from one mid-level person. But it’s potentially powerful, and not just for opposite-sex couples. If DOMA goes, and if the state really intends civil unions to be the equivalent of marriage, then same-sex couples might be able to accede to at least this one federal perq. Maybe. This whole ganglion wrapped in a skein reminds us that predicting consequences of acts undertaken in reliance on what we think is settled law can be parlous. For example,
III. “We’re Not in Kansas Any More” — Oh, Wait, We Are!
For those, like Elizabeth Marquardt, who want to do away with anonymous sperm donations on the (not unreasonable) premise that children have the right to know whom their parents are, this action by Kansas state officials should be chilling. I’m curious to know what people think about the state’s exploitation of a legal infirmity with a known sperm donor/lesbian couple’s agreement that the donor would have neither rights nor responsibilities for the daughter that was born of the artificial insemination.