Marriage Equality and Criminalizing Same Sex Marriage Applications

Some of my friends who are paying particular attention to the marriage equality issue have asked for my opinion on recent concerns about whether recent legislation has made it a criminal act for same sex couples to apply for a marriage license.

While, I certainly would not call the General Assembly a friendly place for marriage equality, I don’t think there was a plan in this case to single the issue out for special, negative treatment.

As I understand it, the concern is with the penalties in IC 31-11-11. Those penalties were part of the massive criminal law reform bill, HB 1006, that (for the most part) goes into effect on July 1, 2014.

In particular:

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.

This raises concerns because, when coupled with forms with specific gender designations on marriage applications, it might be regarded as a felony if two males are applying for a marriage license and one of their names is placed in a field labeled “female.” (Those designations facilitate execution of IC 31-11-1-1 requiring that marriage is limited to heterosexual couples.)

My thoughts are these:

First, this is not a new concern. The law regarding false information has been in place for years. The redesignation from “Class D” felony to “Level 6″ felony isn’t some new enhancement for this particular crime; rather it is part of the larger overhaul of the criminal law. I don’t know the particulars, but it appears as if a great many Class D felonies are being redesignated as Level 6 felonies.

Second, when individuals are using paper forms, they could almost certainly take themselves out of risk of this particular crime by simply crossing out the incorrect gender designation and replacing it with the correct ones.

Third, when 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.


  1. says

    Thank you for helping explain this in simple and easy to understand manner. I have posted this to our Facebook pages for our clients and church members who have been asking questions…

    this will help me very much.

    Thanks Masson!

  2. Will Welch says

    Another issue is this, which has more to do directly with same sex couples and appears to convict clergy who “solemnize” one:
    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

    • says

      It’s an interesting question. But, I think courts would read “solemnize” as being a technical term referring the ability to perform marriages that are recognized by the State — as opposed to, say, a more general notion having to do with clergy or someone else performing a ceremony that is not a state sanctioned marriage.

      I say this because “solemnize” has a particular function within IC 31-11-4 and the people who can “solemnize” a marriage is set out in IC 31-11-6.

      • Erica Keppler says

        If “solemnize” means the legal ability to form a lawful martiage, isn’t it self contradictory to define a criminal act to solemnize a marriage forbidden by the state? If it is forbidden, no marriage was formed, and as such no solemnization occurred. Just a bunch of words were spoken. For solemnizing a forbidden union to be a crime, “solemnize” must be defined in terms other than the act of forming a legal union.

          • Will Welch says

            I think…it makes no sense that simply saying “solemnizing words” at a same-sex marriage ceremony would be against the law. That sounds pretty outrageous to me.
            Certainly there has to be a document signed, right? It really seems like the only way for the clergy person to “break the law” would be to knowingly sign an illegal marriage license and then submit it to the county/state.

            • Don Sherfick says

              It doesn’t appear that term “solemnize” is otherwise defined in the Indiana marriage statute or elsewhere. I’ve been asked by several folks in LGBT-friendly church congregations who are concerned (much more than then need to be, I think, but nonetheless….) that somehow just officiating at a ceremony blessing/confirming/whatever a same sex couple, even if they sign nothing, is “solemnizing”. I think that term really includes the concept of “certifying” something as a legitimate civil marriage in Indiana, but I’ve yet to find anything “official” saying that.

              • Don Sherfick says

                On looking further IC 31-11-4-16 talks about the duty of one solemnizing a civil marriage to sign the license and duplicate license, and return the latter to the clerk of the court within so many days. I think that reinforces the notion that “solemnization”, while not defined, is part of a concept of making a representation to the state concerning a license that the clerk has approved and issued in the first place.

  3. Kurt M. Weber says

    The real issue here, of course, is the regrettably all-too-common failure to understand the difference between sex and gender.

  4. Freedom says

    We desperately and immediately need felony-defense laws, a felony-defense amendment or a felony-nullification ruling.

    Once, felonies were exclusively capital crimes. Now, felonies can attach to administrative conduct from which a gaze to the horizon finds no possible victim.

    “Felony” is widely used and means precisely nothing, yet conviction of such made-up crimes has drastic and lifelong consequences.

    Under the Masson theory of government, i.e., government by grace and whim, no imperative ever exists to protect the people from tyranny, as the notions of excessive, cruel or abusive government are defined out of existence. Government exists prior to and superior to other concepts and understandings of the relation of the individual to the state. “Right” and “wrong” have no meaning independent of the state and mean precisely adherence to the law, and not a drop more or less.

    It’s contradictory for someone with such a view of government to complain about a law.

  5. says

    Dan Carden had a story on this issue over the weekend in the Northwest Indiana Times, which accurately described the issue and noted it was a law that’s been on the books since 1997. I blogged about it extensively on Sunday to caution same-sex couples, some of whom were mistakenly believing that the Supreme Court’s ruling allowed gay marriages in Indiana. These other blogs deliberately distorted the original reporting of Dan Carden and my own blog without attribution and made it appear that it was a new law. If anyone had bothered reading my blog post on Sunday, they would have understood everything they needed to know about the issue. Marcia Oddi at the Indiana Law Blog pretended that neither Dan Carden’s original story nor my blog post over the weekend had been written or my blog. Not really surprised since she’s got a bug up her ass towards some of us in the blogosphere.

    • says

      I hadn’t seen either yours or Marcia’s posts because the death of Google Reader has made my blog reading awfully spotty. I’m getting back up to speed with Feedly to some extent.

  6. Observer says

    Was it necessary for Mr. Welsh to make a crude remark above about someone? Seems he’s upset because others are read much more than he is.

  7. Gary Welsh says

    Why don’t you point out that the only person who has been prosecuted under this law, Doug, is Charlie White, a straight man? Oh yeah, we don’t like him so who cares if the state prosecuted him on a bogus charge of stating the wrong address on the marriage application. I’m betting that there are thousands of couples every year who shack up together before marriage who lie on their application and make it appear they are living at an address other than the address of their spouse-to-be. Are we going to prosecute all of them? In fact, I suspect you could have charged the special prosecutor who filed that charge against White with the exact same crime.


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