Ask Gerry: Can Indiana same-sex couples marry in Illinois?

Indiana State Capitol. Photo: Daniel Schwen/Wikimedia Commons.

Indiana State Capitol. Photo: Daniel Schwen/Wikimedia Commons.

Question:

As Indiana LGBT advocates continue to fight for marriage equality in Indianapolis, many have been curious as to whether or not we Hoosiers are able to cross the border and marry in Illinois where same-sex marriage is now legal in a couple counties. There are conflicting opinions being shared on Indiana-based Facebook groups.

Could you please clarify once and for all if lesbian and gay Indiana residents can get married in Illinois?

John M. Livelsberger, Michigan City, Ind.

Answer:

To answer your question, I have referred to the Cook County Clerk—the issuer of marriage licenses in metropolitan Chicago—and the FAQ marriage primer it published.

Cook is one of only two counties currently issuing marriage licenses to same-sex couples in the State of Illinois, as I write this. The other is Champaign. Other county clerks are currently seeking advice as to whether or not they should follow suit.

The answer is complicated:

According to the Cook County Clerk marriage primer, “If we live in a different state, can we get a marriage license in Cook County? Yes, even if same-sex marriage is not legal in your state.

The Cook County Clerk primer is flat-out saying out-of-state residents will be granted marriage licenses.

Will the marriage license be legal?

The obtaining of a marriage license, however, does not mean that the couples’ home state will acknowledge and validate it as legal. It would take legislation or a federal court order in Indiana to make that change.

What complicates this situation even more is a part of Illinois law—the Illinois Marriage and Dissolution of Marriage Act—that was not repealed.

 (750 ILCS 5/217) (from Ch. 40, par. 217) 
    Sec. 217. Marriage by Non-residents - When Void.) No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction if such marriage would be void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void. 
(Source: P.A. 80-923.)

In other words, the county clerks may decide to issue marriage licenses to same-sex couples from Indiana, but even within the State of Illinois, that marriage may not be legal either.

It would seem that the Cook County Clerk has made a decision that leaves such marriage licenses issued to out-of-state same-sex couples in some sort of questionable legal status.

Requirements to obtain a marriage license

Before any Illinois residents head to the clerk’s office to get hitched—or before Indiana residents head over the border—there are several other things they need to know about obtaining a marriage license.

A marriage license from the Cook County Clerk costs $60. There are several types of optional marriage certificates ranging from $15 to $65, according to the Cook County Clerk’s office.

Couples are eligible for a marriage license if they are 18 years old or older, not blood relatives, and not already legally married to other people, or to each other. They must both supply primary identification—which can be a state driver’s license or ID card, U.S. passport, or U.S. Armed Forces ID card. Two forms of secondary identification are needed—among which couples may each choose a certified copy of a birth certificate, U.S. naturalization certificate, U.S. resident alien card, life insurance policy at least one year old, foreign passport, baptismal record with date of birth, consulate ID card.

Persons who have been divorced must supply the date the divorce was finalized. Persons who divorced within the past six months must show a certified copy of the divorce decree.

“Marriage licenses are issued in the county where the ceremony will occur, so you must get married in Cook County if you get your license here,” the Cook County marriage primer says.

Couples may find an ordained religious or non-denominational leader ahead of time to officiate a wedding. Or couples may head to Marriage Court at Chicago City Hall, 119 W. Randolph St. Marriage Court hours are Monday through Friday from 9:00 a.m. to Noon, and 2:00 to 4:00 p.m., and Saturdays from 9:00 a.m. to Noon. No appointment is required and there is a $10 fee.

How does a couple obtain a copy of the marriage certificate?

“Marriage certificates are not automatically sent to couples,” the Cook County marriage primer says. “If you have a marriage ceremony, your officiant completes and signs the marriage license and returns it to the Clerk’s office. The Clerk’s office then records your marriage and can issue a certified copy of your marriage certificate. The turnaround
typically takes about a week. If you convert your civil union to a marriage, marriage certificates should be available
immediately.”

Should the day come that Indiana adopts—by legislation—marriage equality, it may or may not honor marriage licenses issued in Illinois, or any other state that has afforded the right to same-sex couples, depending on how the Indiana legislature crafts its language.

Hopefully for our neighbors in Indiana, marriage equality at home will happen sooner rather than later and finally end the ambiguity.

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Gerald Farinas

About Gerald Farinas

An Edgewater Beach resident, Gerry is managing editor and interim editor-in-chief of Chicago Phoenix. He is concurrently a social services professional and media consultant. For more info: www.geraldfarinas.com.

There are 3 comments

  1. nonya

    Note that Illinois does not have “same day” marriage (think Vegas). An IL marriage license is valid for 60 days, effective the day after issuance. So, a couple can *not* go straight from the Clerk’s office down the hall to Marriage Court.

  2. Don Sherfick

    Gerry: Have you sufficiently researched the issue of the impact of the section of Illinois that WASN’T REPEALED when the legislature enacted same sex marriage? It says that if a couple (of any kind) from a state where such a marriage would be void goes to Illinois and goes through the process, it’s not a legal marriage in Illinois. And if not a legal marriage in Illinois, it wouldn’t be one the feds would currently recognize under the Windsor decision. Lambda Legal seems to have simply said “it depends on what state you’re from”, not addressing the specific question as to whether or not Indiana is one of those states. Are the Cook county clerks saying “we just ignore that part of the law?” Is the Governor now saying that or does his decision merely signal a safe go-ahead for Illinois residents? PLEASE do some more looking, Gerry………..a number of Indiana couples are concerned and feel that the answers being given are evading the statute still on the books.

  3. Beth Henkel

    While I certainly agree that states and officials should issue licenses to same sex couples, I am concerned that the Clerk says that they can issue licenses to out of state residents without regard to the state in which they reside. They may not be aware of this section of Illinois law, which is still in effect:

    (750 ILCS 5/217) (from Ch. 40, par. 217)
    Sec. 217. Marriage by Non-residents – When Void.) No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction if such marriage would be void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void.
    (Source: P.A. 80-923.)

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