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Legalization of Same-Sex Marriage in Illinois Means Federal Benefits for Same-Sex Spouses

Illinois Governor Pat Quinn signed into law a bill that changes the definition of “marriage” in Illinois from an act between a man and a woman to one between two people. The bill, which creates the Religious Freedom and Marriage Fairness Act, was narrowly passed by the Illinois House in a 61-54 vote on Nov. 5, 2013, followed by an easy approval in the Senate. The Senate had initially approved the bill on Feb. 14, 2013 before it stalled in the House in May. With Governor Quinn’s signing, Illinois is now the 16th state to legalize marriage between two people of the same sex.

Civil unions were recognized in Illinois in 2011 when Governor Quinn signed into law The Illinois Religious Freedom Protection and Civil Union Act. At that time, couples who entered into civil unions were afforded (under Illinois law) the same obligations, responsibilities, protections, and benefits as were afforded to spouses. But civil union partners were not joined by “marriage” and were not entitled to the benefits and protections afforded to a “spouse” under federal law. Thus, when the Supreme Court, in United States v. Windsor, found unconstitutional Section 3 of the Defense of Marriage Act (DOMA), which defined “spouse” as applying only to a marriage between a man and a woman, it was of no effect in Illinois.

Once the Religious Freedom and Marriage Fairness Act takes effect (on June 1, 2014 or potentially earlier if additional legislation is passed as has been discussed) all married couples in Illinois – same sex and opposite sex – will enjoy the same benefits afforded to spouses by federal law (in addition to state law) including:

  • FMLA: the ability to take FMLA leave (and job restoration rights) to care for a spouse with a serious health condition;

  • Internal Revenue Code: the ability to claim a tax exemption for health benefits for a same sex spouse;

  • Immigration: the ability to sponsor a same-sex spouse from another country to reside legally in the United States;

  • COBRA: the ability to elect continuation coverage for a same sex spouse in connection with a qualifying event;

  • Benefit Plans: the ability to participate in traditional defined benefits plans for qualified joint and survivor annuity and qualified pre-retirement survivor annuity rights;

  • Health Plan Enrollment Rights: Upon marrying a same-sex spouse, an employee may have special enrollment rights entitling him or her to enroll the new spouse in the employer’s health plan;

  • Cafeteria Plans: the ability to pay, on a pre-tax basis, the cost to an employee of health plan coverage for a same-sex spouse through a Cafeteria Plan.

Illinois employers are encouraged to review their policies and consult with both employment and benefits counsel to ensure their policies reflect the changes this new law will bring.



Roy A. Ginsburg, Labor and Employment Attorney, Barnes Thornburg, Law Firm

Roy A. Ginsburg is a partner in Barnes & Thornburg LLP’s Minneapolis, Minnesota, office and a member of the firm’s Labor & Employment Law Department.

Mr. Ginsburg has represented private and public companies for more than 30 years in employment and commercial litigation within his national practice. He has litigation experience in various employment law disputes, including trade secret misappropriation, usurpation of corporate opportunity, corporate raiding, breach of fiduciary duty, and breach of employment-related contracts, such as restrictive covenants and non-competes. Mr. Ginsburg has also defended numerous employment discrimination claims, including sexual harassment, age, disability, race and gender discrimination, and is well-versed in handling both class and multi-party litigation. In addition, he has experience both with respect to advising clients on FLSA and state wage and hour issues, and defending FLSA and wage and hour litigation.

Teresa Jakubowski, Labor and Employment Attorney, Barnes Thornburg, Law firm

Teresa L. Jakubowski is a partner in Barnes & Thornburg LLP's Washington, D.C. office where she practices labor and employment law and is a member of the firm’s Disability Law Practice. Her practice includes providing legal counsel and representing clients in litigation and administrative proceedings in the areas of employment law, particularly discrimination/equal employment matters; the Employee Retirement Income Security Act of 1974 (ERISA); the Family and Medical Leave Act of 1993 (FMLA); wrongful discharge; state employment laws; fair housing; and accessibility for individuals...

Mark Kittaka, Labor and Employment Attorney, Barnes Thornburg, Law Firm

Mark S. Kittaka is a partner and the administrator of the Labor and Employment Law Department of Barnes & Thornburg LLP’s Fort Wayne, Indiana office. Mr. Kittaka’s practice covers all areas of labor and employment law including federal and state litigation concerning discriminatory practices and retaliation claims, including, but not limited to: Title VII race, sex, color, and religious discrimination claims; the Americans with Disabilities Act (ADA) (disability discrimination, reasonable accommodation, interactive process); Age Discrimination in Employment Act (ADEA); the Family and...