Everything you've read about this "new" Indiana law that makes criminals out of same-sex couples who apply for a marriage license is wrong. Dead wrong.
As a native Hoosier, this has me concerned. There is no new law in Indiana that makes criminals out of same-sex couples who apply for a marriage license. An already existing law was updated and there's been a change in how the state processes marriage license applications. That's the source of the confusion.
There is actually very little danger of triggering this law if a same-sex couple applies for a marriage license. Here's why.
Let's start with the law itself. This law has been in place since 1997 and is intended to penalize anyone who provides false information on a marriage license application as well as penalties for any public official who knowingly certifies false information on any government consent form. It is not tied specifically to same-sex marriage and predates Indiana's same-sex marriage ban by half a decade. Here's the text in question (with the changes highlighted):
SECTION 307. IC 31-11-11-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 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 Level 6 felony.
SECTION 308. IC 31-11-11-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 2. A person who knowingly furnishes false information in a verified written consent under IC 31-11-2 commits a
Class D Level 6 felony.
As you can plainly see, the only change to the law was to strike out Class D felony and change that to a Level 6 felony - a lesser crime.
This was part of an entire overhaul of the Indiana penal code that was done, in part, to lower penalties for non-violent crimes in addition to a general overhaul of local and state government (some of which was very bad, but not this particular change.)
There was also a question about IC 31-11-11-7, which reads:
A person who knowingly solemnizes a marriage of individuals who are prohibited from marrying by IC 31-11-1 commits a Class B misdemeanor.
This, too, was part of the original 1997 law. It was not updated at all during the 2013 legislative session. This law criminalizes the solemnization of any illegal marriage. Same-sex marriage is only one category of illegal marriage under IC 31-11-1. Bigamy, marrying a close family member, underage marriage, etc. are all covered by this part of the Indiana Code. This does not apply to commitment ceremonies - only attempts to legally solemnize an illegal marriage. (This portion of the law would apply to a same-sex couple who obtained a legal marriage license from another state, but then wanted to have their ceremony in the state of Indiana. A clergy member or other official officiating the ceremony would be committing an infraction of IC 31-11-11-7. UPDATE: Others have pointed out that most states require a marriage to be solemnized in the state in which the license is issued. I don't know if this is true nationwide, however, so I've left this part intact.)
The Marriage Application
The consternation for this law is coming about because of a change in how Indiana processes marriage applications. As part of an overall effort to modernize and digitize all state public records, Indiana has been switching - county by county - to a digital marriage license application form.
On the digital form, there are specific gender designators for male and female that cannot be changed. Previously, on the paper form, one could mark out male or female and write in the appropriate gender to make the form correct. On a digital version, this isn't possible.
So, some enterprising reporter put two-and-two together and wrote up a story about how there was a new law (no, it's an updated law that only changed the penalties) that would criminalize the act of any same-sex couple who filled out the electronic form because they would, by default, have to lie about the gender of one of the applicants.
Here's where it gets confusing for most folks, including the reporter who wrote the original piece: the law specifically criminalizes "knowingly providing false information" - in other words, when there is an intent to defraud the state, you have committed a crime. As several Indiana lawyers, including my friend and fellow blogger, Doug Masson, have pointed out, the simple act of writing (male - not female) or (female - not male) after your name should suffice to make your intent clear.
[W]hen it comes to electronic forms where one cannot strike through incorrect information, things get trickier, but I have a hard time concluding that a prosecutor would prosecute, a jury would convict, and a reviewing court would uphold a conviction where, for example, in the field with the incorrect gender designation, the applicant put the correct gender in the name field. (For example "JOHN SMITH (MALE - NOT FEMALE)"). The burden is on the state to show beyond a reasonable doubt that the applicant was knowingly furnishing false information. I'm not sure how anyone could say the burden was met in such a situation.
Without an intent to fraudulently obtain a marriage license, there is no crime in question. Proving intent to defraud the state to obtain an illegal marriage would be a stiff burden for any prosecutor to take on, especially with a civil disobedience/protest defense available. What's more, even if such a case were miraculously successful, there are a great many avenues of appeal that would almost certainly overturn any conviction of this type.
It has always been illegal for a clerk or other official to accept knowingly false information to issue a marriage license (or other government permit or document) so, again, nothing new here except a lesser penalty for the infraction.
Indiana has not created new laws with regard to same-sex marriage and the changes to existing law do not change the legal landscape other than to lower the penalties for infractions of this law. This new concern doesn't stem from new law, but the confluence of a 1997 law criminalizing false information on a marriage application, the 2003 law banning same-sex marriage in Indiana, and the slow-moving modernization efforts, which have been ongoing for nearly a decade (and which has not rolled out to all of Indiana's 92 counties.)
What this incident actually proves is a bigger point about how these marriage bans are mean-spirited and discriminatory in addition to not being well thought out. It says a lot about the unintended consequences of such laws when two loving people, who simply want to share a life together, have to worry about potentially breaking the law just to ask to be married.
The real headline for this story should have been: Under existing state law, new marriage license procedures will make it difficult for same-sex couples apply for a marriage license. But that's not a sexy headline at all, is it?
This article was updated to add the information about section of the law referring to clergy - IC 31-11-11-7.