Who Can I Marry? A Chicago History

As we approach February 26, the anniversary of the day same-sex marriage began in Chicago, it is interesting to take a look at the history of marriage restrictions in Chicago.

Pre-Statehood (Prior to 1818)

I haven’t researched this period in great detail, as marriage did not seem to be overly regulated. In early Chicago, Native American marriage customs prevailed. These customs were fairly free. Generally whoever and how many people could get married was a matter for the individual and families to decide.

In the pre-statehood days, Chicago was considered part of a variety of jurisdictions. These included France, England, Virginia and the Northwest, Indiana and Illinois Territories. The various territories and states also adopted English common law. Common law is the law as decided by judges (as opposed to laws passed by the Legislature).

Most of these jurisdictions had marriage laws, but according to Andreas' History of Chicago, Chicago was not blessed with its first lawyer until 1805. It is doubtful he would have had law books from all those jurisdictions anyway. So even if there were laws, most likely nobody knew about them. Enforcement probably waited until the 1820s when justices of the peace began to get elected in Chicago.

Below is a historical summary of who you couldn’t marry according to the Illinois Revised Statutes.  I am starting in 1819 when the State of Illinois passed its first marriage law. Note that actual enforcement is somewhat complicated. Some types of marriages might be considered valid until voided by a court order. An example might be if both parties were drunk when deciding to get married. Other types of marriage are considered void even without a court order.

• Bigamy or plural marriages: Although popular in some parts of the world, plural marriages have been prohibited 1819 to date.
  Bigamy had been punishable under Indiana Territorial laws by death. In 1819, Illinois reduced the sentence to “no less than 100 nor more than 1,000 lashes”—also a death sentence. It is doubtful if this was often enforced. One defense was that you didn’t know if the first spouse was still alive. In later years penalties were much reduced.
• Stolen Brides: Prohibited 1819 to date
  Even if your bride was later happy to be married, the marriage is void if you stole her in the first place.
• Age of marriage:  
  • 1819-1974: Males 21 and females 18. With parental consent, 17 for males and 14 for females. Changed to 18 for males and 16 for females in 1905.
  • 1974 to date: 18 and over for both sexes, 16 with parental consent, 15 with a court order.
• Interracial Marriage: Prohibited 1829-1874
  The 1829 Illinois law stated: “No person of color, negro or mulatto shall marry any white person." Laws against interracial marriage were repealed in 1874, never to be resurrected.
  Interracial marriage continued to be prohibited in much of the rest of the country until the 1967 U.S. Supreme Court decision in Loving v. Virginia. As an example, The Chicago Daily News Almanac and Yearbook for 1910 shows that 28 states banned interracial marriage. The Arizona Supreme Court even ruled in 1942 that a mixed race person could not marry anybody. In the 1920s, Chicago's Motion Picture Censors' and Reviewers' Manual, unlike censorship boards elsewhere, refused to ban depictions of interracial marriage.
• People with Mental Disabilities: Marriage prohibited or limited to some degree 1819-1965.
  Prior to 1874 by common law (cases decided by judges). From 1874-1965, by acts of the General Assembly.
• Closely related persons: Prohibited/restricted 1819 to date
  In 1843 incest was formally defined and prohibited. Marriages prohibited with parents, grandparents, uncles, aunts and siblings.
  Bonham v. Badgley, an 1845 Illinois Supreme Court case, found incestuous marriages contrary to God’s law (and common law). However, despite a state law passed in 1843 saying the opposite, a niece married to her uncle was OK with God according to the Illinois Supreme Court.
• First Cousins: Prohibited 1887 to date
  Although cousin marriage is popular in many parts of the world and legal in about a third of the states, it has been prohibited in Illinois from 1887 to date. First cousins were permitted to marry in 1981, but only if both were over 65. In 1984, this became if both were over 50, or either was sterile. Neither of these exceptions were available to same sex cousins wishing to form a civil union from 2011 to 2014.
• Same-Sex Marriage: Became legal in 2014
  Previously the law had stated that a marriage was between a male and a female. In 1996, additional language was added to ensure that Illinois would not recognize same-sex marriages from other states. Chicago promptly passed legislation recognizing "Domestic Partners" of city employees. In 2011, Illinois civil unions carrying the same obligations and privileges as marriage were made available to most same-sex partners.
  In 2013, the U.S. Supreme Court overturned the federal Defense of Marriage Act in U.S. v. Windsor, setting the stage for same-sex marriage nationwide.  Same-sex marriage became available in Chicago on February 26, 2014 as the result of a court decision. The state law authorizing same-sex marriage also took effect in 2014.