11/29/2011 05:16 pm ET Updated Feb 02, 2016

Illinois Civil Union Tax Loophole Fixed: Couples Get Joint Tax-Filing

In a big reversal from the Illinois Department of Revenue, couples who have entered into civil unions will be able to jointly file their 2011 state tax returns.

Illinois recently moved to offer statewide protections supposedly equal to (but separate from) marriage with the passage of the Illinois Religious Freedom Protection and Civil Union Act. The act reads broadly about what it provides for same-sex couples, stating:

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)

In short, anyone in a civil union gets the same state benefits as someone who is married. The act even puts in purposefully broad language about being "liberally construed" to implement the purpose and spirit of the law.

Proving the problem with separate and unequal relationship recognition like civil unions, however, the Illinois Department of Revenue posted a rather surprising reading of the civil union act on its webpage back in June, saying that couples in civil unions "may not file joint Illinois returns" and that the new law "did not change the Illinois income tax laws," due to the federal Defense of Marriage Act (DOMA):

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.

Joint tax-filing for couples in civil unions was one of the main benefits quoted during the debate of the new law in Illinois, yet even the broad language and clear intent of the Civil Unions Act couldn't erase the confusion in the Department of Revenue over how to treat the different status of same-sex couples.

It seems that attention from the media and activists alike has cleared up some of that confusion. Susan Hofer, a spokeswoman for the Illinois Department of Revenue, confirmed Monday that at the request of Governor Pat Quinn, the state has issued new guidelines allowing couples in civil unions to file jointly, electing to file state taxes as "married, filed jointly" or "married, filed separately," just as married spouses do. Couples will still have to file federal tax returns individually.

Joint state tax filings are an important part of the benefits supposedly provided to same-sex couples in civil unions. While it is a move in the right direction that this tax loophole is fixed, it is a glaring example of why separate is never equal. We decided long ago that segmenting minorities out for separate treatment can never create equality. Creating new, separate, and different levels of rights and recognition among committed couples only creates further inequity, confusion, and discord, even internally among states that seek to expand rights.