Illogical Illinois Law?
I'm currently bouncing around the halls of Loyola University Law School - a place I ended up thanks to the advice of many trusted Springfield mentors.
Amazingly enough, I am actually learning a thing or two. Take Thursday for example...
Property class had us discussing the contract rights of co-habitating, non married couples in Illinois. I was surprised to learn that Illinois is a rare state in that it typically does not recognize the property division contracts made between co-habitating, non-married couples. The contracts are voided, it was explained, with the logic that doing so would encourage those couples to actually get married.
Interestingly, non-sexual co-habitation does not void contract rights. In other words, roommates can buy furniture together and then contractually agree what happens to that furniture when the roommates split up. Romantic couples who live together cannot do that. The Illinois courts want them to get married, so they don't recognize their contracts.
That led me to ask if this voiding of contracts applied to same-sex couples in our state. My learned professor was not 100% sure, but believed that it did. Hmmm...
That means that same-sex couples have their property division contracts voided, while simultaneously forbidding them the right to marry.
If that is true, then Illinois courts essentially follow this logic: The law punishes conduct B, because it seeks to encourage conduct A. However, the law does not allow conduct A. Thus, the law essentially promotes conduct C. Whereas conduct C is a non-stable sexual relationship.
Illinois law doesn't discourage monogomy and stability in same-sex relationships, does it?
This cannot be the case, can it? There must be a legal mind out there in the Illinois blogosphere who can correct my Property professor and assure me that this is wrong.
This must not be true.
If it is true, than by itself the logic should be enough reason to put HB1826 over the top come next February.
7 comments:
The law punishes conduct B, because it seeks to encourage conduct A. However, the law does not allow conduct A.
Uh, no.
The state discourages, but does not punish, conduct B (heterosexual cohabitation outside marriage), because it wishes to encourage conduct A (marriage).
Conduct D (homosexual relations) is a different thing in kind, purpose, and likely result than Conduct B, and so if the state voids contracts between homosexual partners, it needs to show a compelling reason to do so.
The compelling reason for discouraging conduct B in favor of A is the protection of children resulting from the relationship. This reason does not obtain for discouraging conduct D.
Your logic only works if you assume in advance that homosexual conduct and heterosexual conduct are legally, morally, socially and physically equivalent; this is simply not the case. To make such an unspoken assumption causes one to suspect that your hidden agenda is to promote so-called gay "marriage".
That you would be taught to make such an unspoken assumption at an ostensibly Catholic school is highly unfortunate, but not really surprising.
To Paul, just this guy, you know:
Let's talk about hidden agendas.
I think that it is interesting that you chose "conduct d" for homosexual relations. Why not "c"; it follows alphabetically. Sounds to me like you hate your own latent desire for a little "conduct d" so much that you just had to be sure to comment at 5:53 in the morning on it. Push that demon away for another day and stay out of the airport bathrooms. They're sooooo tempting! You know, to straight guys like you and me that are so outraged.
First,
This must not be true.
My apologies, I should have noticed this earlier, and should not have attributed to Paul Richardson any desire that this should be a viable argument.
To the anonymous airport bathroom expert who addressed me above:
Paul R. had already used "Conduct C" in his initial example, and I was simply trying to stick to his lettering.
5:53 is just before I head out the door to work; I was cruising headlines as I often do, and that was when I saw this piece.
Interesting that you should employ innuendo and an ad hominem attack, instead of trying to address my argument.
cruising? come on, man. this is too easy. take it to craigslist, bro.
Paul, just this guy, you know-
Interesting comments. I can see your logic, but I disagree.
The state discourages, but does not punish, conduct B (heterosexual cohabitation outside marriage), because it wishes to encourage conduct A (marriage).
I don't want to get caught in vernacular, but I consider it 'punishment' to void contracts that would otherwise be recognized. It is a revoked privilege. It makes sense to me to call it a punishment.
Conduct D (homosexual relations) is a different thing in kind, purpose, and likely result than Conduct B, and so if the state voids contracts between homosexual partners, it needs to show a compelling reason to do so.
OK, you are right. Homosexual conduct involves people of the same sex. In that respect, it is different than heterosexual conduct. But I strongly disagree that they differ in 'purpose, kind, and result.' Same-sex couples enter into a relationship and co-habitat for the same reasons as straight couples: because they are in love, and/or because it makes financial sense, and/or because they seek to grow closer to one another, and/or because they seek to start a family.
If by 'result' you are referring only to the ability to procreate, then yes, the couples are different in that respect. But same-sex couples can adopt in Illinois, and often already have children from prior relationships.
Perhaps we are looking at a different world or different part of the world. But from my view same-sex couples are not unique entities at all. They act like all other couples do. To me, you are grossly exaggerating these 'differences.'
The compelling reason for discouraging conduct B in favor of A is the protection of children resulting from the relationship. This reason does not obtain for discouraging conduct D.
First, How do you know that this is the 'compelling' reason? Are there other reasons?
Second, we disagree, but should reach the same conclusion. If the reason for discouraging B does not apply to same-sex couples, than why does the contract-voiding still take place?
Your logic only works if you assume in advance that homosexual conduct and heterosexual conduct are legally, morally, socially and physically equivalent; this is simply not the case. To make such an unspoken assumption causes one to suspect that your hidden agenda is to promote so-called gay "marriage".
First, the two relationship types are obviously NOT currently equivalent in the eyes of the law. That is the whole points. Second, I personally DO believe the two relationships are morally equivalent. But, I concede that others disagree with me, like yourself. However, Why does you moral view trump mine in the eyes of the law?
That you would be taught to make such an unspoken assumption at an ostensibly Catholic school is highly unfortunate, but not really surprising.
I was not 'taught to make this unspoken assumption.' It is an understanding that I have personally reached. And contrary to your disappointment, I find it highly impressive that a Catholic school encourages, promotes, and allows genuine discussion of these issues even though they depart from some of the dogma straight from Rome. Isn't that the entire purpose of higher education? Is a school any good if it simply zaps memorized positions into the heads of its students?
I'm proud to be at Loyola.
P.S. Anonymous...I think "Conduct D" should be new slang. Try to get it to catch on.
My, how bloggers can go so far off the rails of the original point in so little time!
I take Paul's original point to be that it is unjust to void someone's property rights on the basis of the marital status (or sexual orientation) of the litigants. It seems to me that marital status or sexual orientation is irrelevant to the rightful ownership of property. Frankly, I can't think of a compelling argument to the contrary.
It seems to me the judge deciding a case under this statute has to ask which of these 4 relationship applies: (1) married straight couples - enforceable, (2) unmarried straight couples - voidable, (3) non-sexual roommates - enforceable, (4) unmarried gay couples - I think the professor is right, that the law intends "voidable" to apply here. Unfortunately, to Paul's point, relationship 5 - married (or committed to each other by civil union) gay couples are not legally recognized in this state.
Now imagine this scenario. Two same-sex roommates not involved in a sexual relationship have a contract regarding the division of their property, but one roommate who is now unhappy with the agreement decides to sue. The plaintiff's argument? He lies and claims there was in fact a sexual relationship (conduct D) and that for that reason the judge must void the contract. If the judge doesn't see thru this ruse, under the law as it now stands, the judge must entertain this claim as compelling and relevant. The defendant's denial that there ever was a sexual relationship may be taken by the judge to be an attempt to hide a homosexual relationship, and unjustly find in favor of the plaintiff. The unjust enrichment of the plaintiff may not be "punishment," but it certainly is a denial of the legitimate property rights of the defendant.
Anyway, I'm guessing the original intent of the legislators might have been to use property rights to promote marriage among unmarried heterosexual co-habitants. I doubt it has had the intended effect. (Let's get married so all this stuff will belong to both of us!) If these legislators are so concerned about straights having sex without a license you can bet they don't look favorably upon gays having sex with or without a license and are more than happy to accept an interpretation that gays' property contracts are voidable under this statute.
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