Metro-East News

Unmarried gay woman has no right to ex’s biz, court rules

Illinois Supreme Court Justice Lloyd Karmeier.
Illinois Supreme Court Justice Lloyd Karmeier.

The Illinois Supreme Court, in an opinion written by Justice Lloyd Karmeier, ruled Thursday that a Chicago woman has no right to a business owned by her longtime domestic partner.

The court issued the 5-2 decision in the case of Eileen M. Brewer, a Cook County judge, and Jane E. Blumenthal, a doctor. The two were domestic partners for 26 years.

After their split in 2008, Brewer sought part of Blumenthal’s ownership in a medical practice. Brewer argued that she contributed to the purchase. Brewer argued she was entitled to part of the revenue from the medical practice or part of the proceeds from any sale of Blumenthal’s interest in the medical practice.

Karmeier wrote in the opinion that the couple never had a legal marriage, and that common-law marriages are not recognized in Illinois. The state Supreme Court established that in a 1979 ruling in Hewitt v. Hewitt, a case where a woman sought property from a man she lived with for 15 years in an unmarried relationship — they even had three children together.

Karmeier wrote: “Since marriage is a legal relationship that all individuals may or may not enter into, Illinois does not act irrationally or discriminatorily in refusing to grant benefits and protections under the Marriage and Dissolution Act to those who do not participate in the institution of marriage.”

Brewer had argued that the Hewitt case is no longer valid because family law has changed dramatically since 1979. The relationship between Brewer and Blumenthal existed prior to Illinois allowing civil unions and same-sex marriage.

A judge initially ruled that Brewer had no right to the medical practice. Brewer appealed.

The 1st District Appellate Court in 2014 ruled in favor of Blumenthal, writing: “Hewitt relied on Illinois’ former policy of discouraging cohabitation between unmarried parties and disfavoring nonmarital children. The court referred to the ‘traditional’ rule in effect in ‘all jurisdictions’ that enforcing property rights between former cohabitants amounts to enforcing a bargain in which all or part of the consideration has been illicit sexual intercourse.”

The appellate court also wrote that it is “no longer justified” to rely on the Hewitt ruling because “Illinois’ public policies toward non-marital relationships and non-marital children have significantly changed.”

Karmeier wrote that morality wasn’t the issue.

“The Hewitt court also questioned and considered the history of whether granting legal rights to cohabiting adults would encourage ‘what have heretofore been commonly referred to as illicit or meretricious relationships’ which could weaken the institution of marriage,” Karmeier wrote. “Today, this court does not share the same concern or characterization of domestic partners who cohabit, nor do we condone such comparisons. Nonetheless, as explained herein, a thorough reading of Hewitt makes clear that the core reasoning and ultimate holding of the case did not rely nor was dependent on the morality of cohabiting adults.”

Supreme Court justices Rita Garman, Charles Freeman, Robert Thomas and Thomas Kilbride concurred in the opinion.

Justice Mary Jane Theis, in a dissent joined by Justice Anne Burke, wrote that the “majority’s attempt to distance itself from Hewitt’s sweeping and near-defamatory statement” about the morality of cohabiting “is unconvincing.”

Theis also wrote, “Illinois is a clear outlier on this issue... Hewitt must be overruled because it is outmoded and out of touch with contemporary experience and opinions on cohabitation.”

The Supreme Court’s decision overturned the appellate court’s ruling and threw out Brewer’s claim.

Brewer’s attorney, Angelika Kuehn, said Thursday: “This is the Illinois Supreme Court, so I”m not going to second-guess whether they’re riht or wrong. But I will say I’m very disappointed with the ruling.”

The National Center for Lesbian Rights criticized the ruling, calling it a “major setback to unmarried couples” and saying it “affirms the discriminatory policy established in 1979 by the Illinois Supreme Court in Hewitt v. Hewitt, at a time when Illinois still criminalized intimate relationships outside of marriage.”

The organization, in a news release, added: “The court rejected the argument that Hewitt is outdated and conflicts both with the constitutional protection now given to unmarried relationships and with current Illinois legislative policies mandating equal treatment of all families.”

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