Laws about marriage and family have been shaped by the practical needs of society, and by religious beliefs. The project of the American legal enterprise, informed by the mandated separation of church and state, and constitutional protections of privacy and autonomy, to uncover legitimate concerns in regulating family and strip away moralistic, religious, or traditional strictures that benefit no one and limit individual liberty. The United States Supreme Court, in US v. Windsor, the 2013 case that famously removed federal restrictions on marriage between parties of the same sex, held that the state’s legitimate interest in defining marriage was grounded in:
…the State’s broader authority to regulate the subject of domestic relationship with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities.” (internal quotes omitted)
Unfortunately for unmarried couples in Illinois, Blumenthal v. Brewer, a recent decision by the Illinois Supreme Court, upholds existing laws that prevent the state from realizing its own legitimate interests. In Illinois, the state can’t help Eileen Brewer protect her children, equitably divide the property or debt acquired during her decades-long relationship with Jane Blumenthal, or enforce any of Blumenthal’s responsibilities to her family.
Blumenthal v. Brewer holds that people who live as if they are married, that is, holding themselves out as married, sharing bank accounts, expenses, and lives, have no legal recourse in Illinois should their relationships dissolve. This is a remarkable thing. A person who has a dispute with a roommate about a joint checking account they use to pay the rent can go to the courts and find a remedy. But in Illinois, according to Blumenthal, a person living with a lover is barred from seeking the similar assistance.
What were the circumstances that led to this seemingly irrational and certainly unfair conclusion by the Illinois Supreme Court?
Jane Blumenthal was a medical student and Eileen Brewer a law student when, in the early 1980s, they decided, as many couples do, to make a lifetime commitment to one another. They exchanged rings and bought a home together. They raised three children together, giving them the same last name and cross-adopting them. Brewer became the primary caregiver for their children while Blumenthal earned her medical license. Together, they paid for Blumenthal’s share of what became a lucrative medical practice. In 2005 they took out a marriage license in Massachusetts. It happens that instead of making use of the marriage license, their relationship began to dissolve. In 2008, twenty six years after committing themselves to one another, Blumenthal ended the relationship, moving out, and leaving Brewer with the house, the mortgage and all the related expenses.
Blumenthal, who’d had the time, support, and opportunity to build a successful medical career, had fared better financially than had Brewer, who had been primary caregiver to their children and was at the time the relationship ended, employed as a county judge, a position rich in honor if not in salary. Blumenthal had her license, her investment in a successful practice, and a net worth more than half a million dollars higher than Brewer’s. When their relationship ended, Brewer and Blumenthal disagreed about the division of their considerable assets, with Brewer seeking an equitable division that would take into account her contributions to the relationship. Their dispute, as many divorce-related disputes do, landed before a judge. Unlike most, Blumenthal and Brewer’s dispute wound its way from trial court to the state appellate division, and ultimately landed at the Illinois Supreme Court.
That court’s decision was remarkable. Brewer can away empty-handed, not because the court decided against her, but because the court refused to even consider her claims, because they arose from her unsanctioned sexual relationship with Blumenthal. Brewer was refused access to the law, in effect being treated as criminal for want of a license. In Blumenthal, the Illinois Supreme Court reaffirmed a long-standing precedent set in Hewitt v. Hewitt, a 1979 case involving a heterosexual couple in a situation that was in most other respects identical to Blumenthal and Brewer.
Hewitt is a case that hinged on Illinois’s elimination of common law marriage in 1905. Prior to 1905, a man and woman who lived together and held themselves out to their communities as married could be declared retrospectively married by the courts. Ironically, this generally happened when the relationship ended, because that declaration of marriage was required if one of the parties wanted to ask for divorce and a share of the couple’s assets.
The elimination of common law marriage meant that after a break-up, the party with the fewer assets – for the sake of brevity, let’s recognize 1979 reality and call that party “she” – couldn’t use divorce proceedings to ask the court for an equitable division of joint property or finances, or compensation for the value of (and lost earnings resulting from) her freely provided services as a housekeeper, cook, and caregiver.
With common law marriage and the concomitant right to divorce gone, only claims of breach of implied contract were left. In a similar situation between people who were not in an “illicit” relationship, where a account and non-financial contributions were at issue, a contract would be by a court to remedy any inequity. But even those claims were foreclosed when they arose from an unsanctioned marital-like relationship. Why had Illinois taken this route?
At the time, unmarried couples living together faced serious moral approbation – they were “living in sin”. The law reflected that moral judgment, defining those relationships as “illicit and meretricious”, the latter adjective coming from the Latin word meretrix, meaning “prostitute”. Any contract, implied or not, was a “bargain for sexual intercourse” and therefore unenforceable in court.
Courts were abandoning this reasoning by 1979, but Justice Robert C. Underwood, author of Hewitt, would have none of it. Here his is, clutching his pearls and worrying – with evident excitement – about the impending damage loose morality could cause the institution of marriage:
Of substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage. Will the fact that legal rights closely resembling those arising from conventional marriages can be acquired by those who deliberately choose to enter into what have heretofore been commonly referred to as “illicit” or “meretricious” relationships encourage formation of such relationships and weaken marriage as the foundation of our family-based society?
Clearly, according to Underwood, individual rights must be subsumed beneath the state’s interest in preventing illicit relationships, and so it was that Mrs. Hewitt, putative wife of Mr. Hewitt and mother of his children, discovered that she was, in the eyes of the law, a prostitute and thus entitled to none of the court’s support. Despite Mr. Hewitt’s promise to “share his life, his future, his earnings and his property” with her, the lack of a marriage license meant that she was essentially selling sex and the court refused to enforce Mr. Hewitt’s promises. This effectively meant that the only difference between a woman having legal sex in the context of a contractual relationship, and woman having “illicit” sex in the context of a contractual relationship, was whether or not that contract took the form of a marriage license. Despite his apparent concurrence, I’m sure the feminist insight that marriage has often been essentially state-sponsored prostitution, would be lost on Underwood.
Had the Hewitt court stopped there and based its decision only on moral grounds, Blumenthal might have come out very differently. Instead, Underwood’s court went on to assert that taking away Mrs. Hewitt’s rights was the only way to avoid creating common law marriage all over again. Thus, although the rule that defines cohabitation as “meretricious” and “illicit” has withered away, it is still essentially in effect as a guard against the return of common law marriage in Illinois.
All of this explains how, despite twenty-six years in a relationship that looked very much like marriage, including the raising of three children and the investment of hundreds of thousands of dollars in her partner’s career, and despite widespread acceptance and legal recognition of same sex relationships, Eileen Brewer could find herself abandoned by the Illinois Supreme Court.
Is there hope for Illinois? Yes. Eliminating laws that unconstitutionally overburden individual rights is a process that is painfully slow, but one that seems inexorable. A few examples: We acknowledged that marriage wasn’t entirely about procreation when, in 1965, the Supreme Court gave married couples the right to use birth control. Laws barring interracial marriage (1967), marriage where one party is incarcerated (1978) or where someone is behind in their child support payments (1987) all were found to be unconstitutional. The freedom to divorce without proving injury or fault became available in every state when New York finally recognized this freedom in 2010. Most recently, the Supreme determined that people of the same gender have a constitutional right to marry (2015).
As US v. Windsor makes clear, societies have legitimate concerns about making sure that individuals meet the responsibilities they accept when they commit to one another. The existence of a marriage license does little to ensure those concerns are expressed in laws that are meaningful to people living in committed relationships. I believe that the Blumenthal case raises important larger questions: Is there any reason to limit the protections of the law to only those relationships licensed by the state? If not, then whose interests are being served by the fact that we continue to do so?