Illinois Civil Unions Hit By Tax Dispute

It has emerged that due to a discrepancy in how Illinois’ new civil unions law squares with existing tax rules, same-sex couples in a civil union are still not be able to file joint state tax returns despite the civil unions act being billed as the state-level equivalent to marriage.

The following notice was discovered on the Illinois Department of Revenue website this week:

The new law permitting Civil Unions did not change the Illinois income tax laws.  Under the income tax act, you may file a joint Illinois income tax return only if you file a joint federal income tax return.  Married couples and partners to civil unions who file separate federal returns may not file joint Illinois returns.


IITA Section 502(c) permits joint returns only when a joint return is filed federally.  The federal Defense of Marriage Act (which is being challenged in the courts) does not allow joint returns by partners to a civil union, so the IITA does not allow joint returns either.

The excuse here is plain: that the federal Defense of Marriage Act prevents same-sex couples filing joint tax returns and the same model applies for state filings.

However, this seems to run contrary to the spirit and plain language of the Illinois Religious Freedom Protection and Civil Union Act which in part reads:

This Act shall be liberally construed and applied to promote its underlying purposes, which are to provide adequate procedures for the certification and registration of a civil union and provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses. (750 ILCS 75/5)

Purposive statutory interpretation would clearly suggest the civil unions act should be read to apply in instances of tax filings, so why the narrow interpretation from the department of revenue?

Instinct Magazine has a comment form a department spokeswoman who says the department’s hands are tied because the Legislature failed to amend the tax code:

“The state, in its infinite wisdom, when they passed the civil unions bill, failed to amend the income tax code, which means that we are by law prohibited from allowing someone to file in Illinois different from the way they file federally,” Hofer tells Instinct.

“We were able to allow a dependent partner to qualify, to say if, God forbid, my partner were sick and could not work, I could claim them as my dependent, which we could not do under prior law. The same is true for people who are blind or over the age of 65. We could not do that prior to civil unions taking effect.

This explanation has failed to satisfy critics as to why the department appears to be reading the civil unions law as not applying in this instance.

Anthony Niedwiecki, a law professor at Chicago’s John Marshall Law School, says the department’s original analysis is “weak”:

In the same section of the law cited by the department to support its analysis, there is another part that allows a married couple to file joint state tax returns when they are not required to file federal taxes.

35 ILCS 502/5 (c)(2) states:

If neither spouse is required to file a federal income tax return and either or both are required to file a return under this Act, they may elect to file separate or joint returns and pursuant to such election their liabilities shall be separate or joint and several.

Niedwiecki goes on to say the department’s interpretation of the law contradicts the clear purpose and language of the Illinois Civil Unions Act. He also cites a recent ACLU analysis of civil union laws that concludes they must be read in light of their intent.

With the department pointing the finger at the Legislature, and the Legislature at this juncture having not issued comment, it would be easy to loose sight of this simple fact: if Illinois had enacted same-sex marriage, this state-level problem, whether as a matter of substance or interpretation, would not exist.

One can argue, of course, that the Legislature should have shown foresight enough to prevent this from happening, or that the Illinois Department of Revenue should not be reading the Act in such a narrow manner.

These things aside, the inescapable fact is that civil marriage, whether rightly or wrongly, is the standard framework by which partnership rights and benefits are awarded, interpreted and distributed in our current social setting. To convey those rights effectively there is a need to open up the framework to those couples seeking recognition of their partnerships that the government has no legitimate reason to prevent.

Civil unions are an imperfect mirror designed to sidestep issues like the place of religion in how we govern civil life. They are, by purpose, separate, they are certainly not equal, and they will always make same-sex couples vulnerable in this regard. Access to civil marriage is, therefore, the answer (and imperative) for long as the institution remains within the majority interest.

Related Reading:

Catholic Adoption Agencies Suing Illinois For Special Right to Turn Away Gay Couples

Illinois Gay Unions Challenged in Push for Constitutional Amendment


Photo used under the Creative Commons Attribution License, with thanks to alex-s.



Duane B.
.5 years ago

Thank you for sharing.

Mary L.
Mary L5 years ago

Fantastic, next time someone says a civil union is just as good as marriage I plan on letting know about this load of tax code.

Glen P.
Glen P6 years ago

Ridiculous complications, when the easiest, best, and ultimate solution that will be arrived at sooner or later, is full fledged marriage equality.

K s Goh
KS Goh6 years ago

Thanks for the article.

Bruce S.
Bruce S6 years ago


Barbara S.

Then change the LAW! When a couple is married, they're MARRIED! It doesn't matter if it's two men, two women, or a man and a woman. The way the Law is presently written, none of the above can file together in IL. That's not Equality.

Sue H.
Susan Hermosillo6 years ago

I agree with Tami, this is why we need same-sex marriage.

Tami Kennedy
Tami Kennedy6 years ago

Another example for the repeal of DOMA and recognizing a Civil Union is NOT a marriage. NY took a big step. Time to follow Illinois.

Brenda Towers
Brenda Towers6 years ago

Thanks for sharing.