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Obergefell’s Effects on Same-Sex Illinois Couples

Obergefell’s Effects on Same-Sex Illinois Couples

Date: September 03, 2015

In June, the U.S. Supreme Court issued a historic ruling in Obergefell v. Hodges, legalizing same-sex marriage in every state. Same-sex marriage has been legal in Illinois for over a year. But the ruling does have an effect on same-sex couples living in the state.


In 2013, the Illinois state legislature legalized same-sex marriage in the state. The law, which does more than legalize same-sex marriage, became effective in June of last year. It strikes a balance between the right to same-sex marriage and protecting religious liberties. The statute states that religious entities may not be forced to perform marriage ceremonies, and can choose whom to marry. Further, they cannot be sued for refusing to perform a same-sex marriage.

The state of Illinois cannot require religious groups to permit their churches, mosques, synagogues, other religious buildings to be used for same-sex marriage events. They have immunity from criminal prosecution and from civil lawsuits.

Since the legalization of same-sex marriage in Illinois, more than 10,400 same-sex couples have been married in the state. Because of the ruling in Obergefell, the legislature cannot ever overturn the law permitting same-sex marriage.

Obergefell v. Hodges

In its June 26 decision in Obergefell, the Supreme Court legalized same-sex marriage nationwide. The case combined four separate cases, addressing bans in Michigan, Ohio, Kentucky, and Tennessee. The court held two things in its ruling: that states must recognize same-sex marriages performed in other states, and that the same-sex marriage bans in the four states were unconstitutional.

The Fourteenth Amendment guarantees equal protection and due process, which means that the government may not deprive people of fundamental rights. In Obergefell, the court held that the right to marry is a fundamental right, and so states cannot deprive same-sex couples of that right.

Effects on Illinois Couples

Though same-sex marriage has been legal in Illinois for over a year, the ruling still affects married same-sex couples living in the state. Before the ruling, there were fourteen states that did not recognize same-sex marriage. This meant that if a couple married in Illinois, then travelled or moved to one of those fourteen states, their marriage would not be recognized in that state, which would cause some problems for the couple.

A same-sex spouse in a state that did not recognize same-sex marriage would have been ineligible for many spousal benefits, including employer-provided health care and survivorship benefits. Additionally, the lack of legal recognition would have caused adoption and parental rights issues and problems with healthcare decision-making, including such basic issues as being let into hospital rooms. Importantly, a same-sex married couple would not have been able to get a divorce if the state they were in did not recognize their marriage.

But now, a same-sex couple’s marriage is recognized in any state. So Illinois same-sex married couples can travel, move, or retire to any state and not have to worry about the status of their marriage.

Obergefell does not address the issue of whether sexual orientation is a protected class, and does not forbid states from discriminating based on sexual orientation. So same-sex couples may still encounter problems with discrimination in housing, employment, or public accommodations if the state in which they live does not have laws protecting against these types of discrimination.

Navigating the issues surrounding same-sex marriage and divorce may be confusing and difficult with the recent changes in the law. Contact the S.A.M. LAW OFFICE, LLC to speak with an Arlington Heights divorce attorney.

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