Same-Sex Marriage: What is the Law and Religious Exemptions?

 Posted on February 27, 2015 in Family Law

On February 21, 2014, Illinois became the 16th state in the United States to start offering marriage licenses to same-sex couples after passing the Religious Freedom and Marriage Fairness Act (RFMFA). This provided same-sex couples the opportunity to finally be able to enjoy the privileges and rights allotted to married couples within the state, which extended to all facets of life such as tax benefits, inheritance rights, and other estate planning matters.

For many, this freedom to marry offered a considerable change to their current life. Before the passing of the Religious Freedom and Marriage Fairness Act, and before the destruction of the Defense Of Marriage Act (DOMA), only civil unions were offered to same-sex couples, which provided acknowledgement of the union but little to no legal benefits. With marriage equality now becoming a legal standard, same-sex couples are curious as to their newfound rights and privileges.

Right to Marry Under Illinois Law

Now under Illinois law, all persons are eligible to marry except if:

• They are blood relatives;
• They are legally married to another person; or
• They are younger than 18 years old, barring certain parental exceptions.

Also under Illinois law, couples must acquire a marriage license, which is valid the day after the day of issue to 60 days after its issuance.

How Does this Apply to Same-Sex Civil Unions?

It is important to note for couples everywhere that civil unions are still offered and legally valid within Illinois. The passing of the RFMFA does not invalidate a civil union, but couples who were originally united under a civil union may convert it into a marriage by applying for a marriage license. If a couple came together under a civil union during the period of June 1, 2014 and May 31, 2015 and would like it to be converted into a marriage, the marriage will be acknowledged as effective from the date of the original civil union. This provides couples the opportunity to easily convert the civil union into a marriage without any additional steps.

Can an Officiant Refuse to Perform Same-Sex Marriage Ceremonies?

With same-sex couples marrying in Illinois, there is a controversy with regards to whether an officiant may refuse to perform same-sex marriages. This debate is currently under review throughout the United States determining which has more power, the right of freedom of religion or the law of discrimination.

The Religious Exemption to Religious Officiants

Under Illinois’s RFMFA, there is a religious exemption extended to religious officials to decide that performing a same-sex marriage is against their religious beliefs, therefore allowing them to refuse to perform the ceremony. This exemption only applies to religious organizations as defined in the statute, which primarily include churches, mosques, temples, nondenominational ministries, mission organizations, or any other faith-based associations whose principal business is the advancement of religious faith. In addition, this exemption only applies to premises whose primary use is largely by the organization and the members of the congregation.

The Debate Surrounding the “Right to Refuse”— Can This Apply to Everyone?

Recent cases tackled the scope of the religious exemption and what applies. As stated above, the exemption is only for religious association and premises that are used primarily and exclusively by the religious organization. If, for example, the organization has facilities that it rents out to the public for its use, it may not refuse to rent out the facility to the same-sex couple. This is significant as it ensures that the religious organization cannot offer a blanket policy against same-sex couples, especially when the premises are open to the general public who are not members of the congregation.

Finally, it should be stated that private clubs and private entities that are not strictly religious and are defined as above may not apply the exemption and must provide the facilities and services to same-sex couples.

Experienced Family Law Attorneys in DuPage County

Same-sex marriage is an incredible leap in equal rights in Illinois. What affects opposite-sex couples affects same-sex couples as well, and it is important to know what laws apply in same-sex marriage. The family law attorneys at Mevorah & Giglio Law Offices can help advise you on you and your spouse’s new legal status as a married couple and help navigate any issues surrounding your union. Contact our DuPage County family law attorneys today for a free and confidential consultation.