Will Civil Unions and Same-Sex Marriage Rights Be Reconsidered?
By: M. Scott Gordon
Any federal law that rolls back protections for same-sex couples in civil unions or same-sex marriages will not be able to impose restrictions on Chicago couples in their private or public lives. To be sure, the Illinois Religious Freedom Protection and Civil Union Act (750 ILCS 75/) and Illinois Religious Freedom and Marriage Fairness Act provide, respectively, the equal rights to same-sex couples entering into civil unions or marriages. In other words, those laws make clear that the same benefits that opposite-sex couples enjoy shall also be available to same-sex couples in civil unions or same-sex marriages. But what happens if the White House issues an executive order that rolls back LGBTQ rights? Or, alternately, what will happen to the benefits enjoyed by same-sex couples if Congress passes a federal law that looks like the Defense of Marriage Act (DOMA) struck down by the U.S. Supreme Court in United States v. Windsor (2013) or overrides the decision in Obergefell v. Hodges (2015)?
Concerns About Same-Sex Marriage Protections in a Trump Presidency
These questions mentioned above, as well as similar and related ones, are coming up with some frequency in response to news about federal LGBTQ protections. For instance, a recent article in the Chicago Tribune reported that the White House was considering “reversing LGBT protections for federal workers.” Is such an issue one that same-sex couples in civil unions and marriages in Chicago need to follow closely?
According to an article in Slate, a number of groups that oppose LGBTQ rights, including same-sex marriage and civil unions, have “spoken out about how they hope to overturn marriage equality.” However, it would be very difficult—at least at this point—to take away federal protections for same-sex couples. To be clear, Congress cannot undercut the U.S. Supreme Court decisions of Windsor and Obergefell. For those decisions to be overruled, cases would again need to come to the U.S. Supreme Court, and it would need to decide differently. Given that the five judges who voted in favor of LGBTQ rights in those cases remain on the court, such a situation is unlikely. If marriage equality is not immediately at stake, what issues should LGBTQ couples in civil unions and same-sex marriages following closely?
Shift in Federal Policy Could “Authorize Discrimination,” Some Say
Advocates for LGBT rights emphasize that “any attempt by the Trump administration to rescind or weaken Obama’s order would essentially be an effort to ‘authorize discrimination’ against gay and transgender people.” Specifically, the rumored rollbacks concern an executive order signed by Obama in 2014, which had two different parts to it. The executive order expanded protections against discrimination in hiring on the basis of gender identity, and it also required any company “doing business with the federal government to have explicit policies barring discrimination against gay and transgender workers.”
Some of those protections are applicable to the issue of civil unions and same-sex marriage, as they help to ensure that employees do not face discrimination as a result of the sex of their spouse. Even if these protections are rolled back, so to speak, couples in same-sex marriages or civil unions may still be able to make an argument for protection given that federal law currently “bans discrimination on the basis of sex.”
Contact a Chicago Civil Union Lawyer
It is important to remember that, even when federal law limited the rights of same-sex couples, Illinois state law went above the federal floor to ensure the rights of same-sex couples. If you have questions about your rights or responsibilities in a civil union or same-sex marriage, a Chicago civil union lawyer can speak with you today. Contact Gordon & Perlut, LLC for more information.