Charging Against a Tide

Indiana legislature makes it a felony to apply for a marriage license if you’re not a heterosexual couple.

Beginning July 1, 2014, a same-sex couple applying for a marriage license in the state of Indiana will be guilty of a Level 6 felony, punishable by 18 months in prison and a $10,000 fine.

Also:

The new law also makes it a Class B Misdemeanor for a clergyman, judge, mayor, city clerk or town clerk-treasurer to perform a same-sex marriage, punishable by up to 180 days in jail and a fine of up to $1,000.  Any clerk who issues a license to a same-sex couple would also be guilty of a Class B Misdemeanor.  (emphasis mine)

Now, there’s no link to the text of the law in the article, but I’m hard pressed to imagine that there isn’t a rather blatant First Amendment challenge in that clause…

More here:

Indiana is poised for a two-stage fight next year over whether to add its existing ban on gay marriage to its state Constitution.

The Republican-controlled General Assembly must decide during the January-March 2014 legislative session whether to submit the proposed constitutional amendment — which also prohibits any form of civil unions — to Hoosier voters for ratification.

If lawmakers approve the amendment, supported by Gov. Mike Pence and other top Republican leaders, the question of a constitutional gay marriage ban will be on the Nov. 4, 2014, general election ballot.

(edited to add):

The relevant Indiana code amendments here.  This is, in fact, a thing.  And given the wording of IC 31-11-11-5 it appears pretty baldly and obviously unconstitutional.

(re-edited to add again):

But, apparently, it’s not a new thing.  From that link:

This is one of those headlines that has popped up all over the internet (eg here) in the past few days. It is wrong. The linked story begins:

Indiana lawmakers have revamped a 1997 law that makes furnishing false information on a marriage license a class D felony. Beginning July 1, 2014, a same-sex couple applying for a marriage license in the state of Indiana will be guilty of a Level 6 felony, punishable by 18 months in prison and a $10,000 fine.What is correct is that provision is not new, the prohibition has been in effect since 1997:

IC 31-11-11-1
Sec. 1. A person who knowingly furnishes false information to a clerk of the circuit court when the person applies for a marriage license under IC 31-11-4 commits a Class D felony.
As added by P.L.1-1997, SEC.3.In fact, that same prohibition was in effect long before 1997. 1997 is when Title 31 was recodified, without substantive change. IC 31-11-1-1 was previously numbered IC 31-7-1-2 and, as explained later in this post, was passed in 1986.

The “revamp” this year is the result of the passage of the massive HEA 1006, the 432-page bill that made many changes to the criminal code, particularly in the area of sentencing, including changing the nomenclature. Sentences have been reclassified so that most “Class D” felonies are now “Level 6” felonies.

IC 31-11-11
Chapter 11. Offenses

IC 31-11-11-1 Version a
False information in marriage license application
    
Note: This version of section effective until 7-1-2014. See also following version of this section, effective 7-1-2014.
Sec. 1. A person who knowingly furnishes false information to a clerk of the circuit court when the person applies for a marriage license under IC 31-11-4 commits a Class D felony.
As added by P.L.1-1997, SEC.3.

IC 31-11-11-1 Version b
False information in marriage license application
    
Note: This version of section effective 7-1-2014. See also preceding version of this section, effective until 7-1-2014.
Sec. 1. A person who knowingly furnishes false information to a clerk of the circuit court when the person applies for a marriage license under IC 31-11-4 commits a Level 6 felony.
As added by P.L.1-1997, SEC.3. Amended by P.L.158-2013, SEC.307.

IC 31-11-11-5
Solemnization of marriage in violation of this article
Sec. 5. A person who:
(1) is authorized to solemnize marriages by IC 31-11-6; and
(2) solemnizes a marriage in violation of this article;
commits a Class C infraction.
As added by P.L.1-1997, SEC.3.

IC 31-11-11-6
Attempt to solemnize marriage by person not authorized to solemnize marriages
Sec. 6. A person who:
(1) attempts to solemnize a marriage; and
(2) is not authorized to solemnize marriages by IC 31-11-6;
commits a Class B misdemeanor.
As added by P.L.1-1997, SEC.3.

IC 31-11-11-7
Solemnization of marriage between persons prohibited from marrying
Sec. 7. A person who knowingly solemnizes a marriage of individuals who are prohibited from marrying by IC 31-11-1 commits a Class B misdemeanor.
As added by P.L.1-1997, SEC.3.

IC 31-11-11-8
Failure to timely file marriage license and duplicate marriage certificate
Sec. 8. A person who:
(1) solemnizes a marriage; and
(2) fails to file the marriage license and a duplicate marriage certificate with the clerk of the circuit court not later than ninety (90) days after the date the marriage was solemnized;

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30 thoughts on “Charging Against a Tide

  1. Homosexual couples in Indiana, I beg you: pick someone with a last name about as awesome as “Loving” to be the first ones arrested for this.

    “Hugs v. Indiana”, maybe.

    I ask because this will make it to the Supreme Court. And they will decide for Hugs.

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    • Here’s the Indiana General Assembly’s source for tracking bills, specifically the marriage and family law page. If you click on a resolution it will provide a pdf link to the bill’s text. Perusing those, I see no such language, so I’m dubious.

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      • Link?

        And is that the code as extant prior to this alleged bill (there’s no mention in the article of it having been signed into law yet, although that could just be an omission), or is it evident from the code that it’s a recent change? (sorry to be pushily pedantic, but I’m really curious, perhaps because it’s my native state).

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          • Thanks. I appreciate both the new links, which really nail it down.

            As for the First Amendment issue on “solemnizing marriages,” I’d have to think longer about it, but I’m inclined to think there’s no constitutional violation. People, including ministers, who are authorized to solemnize marriages are given that authority under Indiana law, and can only exercise it within the bounds of that law. Since same-sex couples can’t legally marry (let’s call it a “certificated marriage,” to emphasize we’re talking about people who have received a marriage license, so that the marriage is intended to be recognized by the state), anyone who assists them in doing so– is de facto part of a conspiracy to violate the law, to commit a fraud.

            That doesn’t mean a minister can’t perform a same-sex commitment ceremony or a spiritual marriage ceremony–that ban clearly would be a constitutional violation–but that they can’t do so in an attempt to create an illegal marriage. For example, in Indiana people can legally marry without parental consent at age 18, and with parental consent at 17. If a minister knowingly performed a “certificated marriage” of 17 year olds without the parent’s consent, or a marriage of 16 year olds (with or without parental consent), would we say they had a First Amendment right to do so, or would we agree that they had conspired to violate a generally applicable law of the state, for which there is no First Amendment protection?

            Of course I oppose the ban on same-sex marriages, and would much prefer that this particular question not even be on the table for discussion. I also oppose the restriction of marriage solemnization to a particular class of individuals, instead of anyone 18 or older that the couple would like to officiate (and sign the license). (And so I enthusiastically applaud the fake divinity mongers who for a small fee will make anyone a minister in the Church of Whatever-the-Hell-It-Is; a great market response to an idiotic law.)

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            • People, including ministers, who are authorized to solemnize marriages are given that authority under Indiana law, and can only exercise it within the bounds of that law.

              This is the part where we need a lawyery type to chime in. If “having a marriage ceremony, sans license, but you’re married within a church” is just as much “solemnizing marriage” as “having a marriage ceremony, with license, and crossed ‘t’s and dotted ‘i’s”, then I’m standing by the assessment.

              If it takes “going through the entire legal process” == “solemnization”, then you’re probably right.

              The wrinkle might be if there is no separate classification. The definitions aren’t necessarily built to be mutually exclusive.

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  2. From the NWI link:

    A 1997 state law declares it a Class D felony to submit false information on a marriage license application or lie about the physical condition, including gender, of a marriage license applicant.

    Two men or two women seeking to marry inevitably would trigger the law, as the state’s electronic marriage license application specifically designates “male applicant” and “female applicant” sections for gathering required background data.

    It’s not known how often Hoosiers, gay or straight, are prosecuted for submitting false information on a marriage license application.

    In any case, the recently approved reform of the state’s criminal code will, starting July 1, 2014, drop the crime to a Level 6 felony, punishable by a maximum of 18 months in prison and a potential fine of up to $10,000.

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  3. The new law also makes it a Class B Misdemeanor for a clergyman, judge, mayor, city clerk or town clerk-treasurer to perform a same-sex marriage,

    [Patrick sez] Now, there’s no link to the text of the law in the article, but I’m hard pressed to imagine that there isn’t a rather blatant First Amendment challenge in that clause…

    I disagree. A clergyman (or anyone else) has a First Amendment right to perform a marriage ceremony only so long as it doesn’t purport to create a legal mariage. Once it does, the state’s marriage laws apply.

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    • So it probably depends on the wording. If the law says that clergy can’t register (or whatever the official term is) a same-sex marriage with the state, then there’s probably no violation of the clergy’s freedom of religion.

      However, if the wording of the article is correct, then it pretty clearly violates the First Amendment.

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      • I’m just spitballing here, so take this with a grain of salt… but based on the timing of the passage of the original bill (combined with what surely seems to be a lack of necessity for it at all), I’m going to guess that the original law had nothing to do with gay marriage. It seems more likely that it may have been passed as part of the then-burgeoning freak-out about south-of-the-border “illegals” trying to get get permanent status to live in the US.

        I have a feeling this was passed to prevent on latino who had gotten status from pho-marrying another just to get that person status.

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  4. The way I’m understanding the second link, the first link is factually wrong. The way it is *now*, a same-sex couple would be guilty of a felony; the change that’s going into effect next year changes it to ‘Level 6’ from ‘Class D’. The second link indicates to me that Indiana has done a wholesale revamp of their categorization of felonies, going from ‘class’ to ‘level’ – and says that level 6 will be lower than the old class D.

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    • This sounds right, although I can’t find the actual text of that bill in the Indiana General Assembly page, either. If the bill actually exists, it’s actually a (very very very very) minor plus for same-sex couples.

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  5. Stuff like this is why Section 2 of DOMA has to go, preferably by repeal, but by litigation if necessary.

    In a world without Section 2 of DOMA, LGBT Indianans who want to marry could just go somewhere else, get married, and Indiana would have to respect their marriage.

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