Wednesday, July 10, 2013

No, Indiana Did Not Just Make It a Crime for Same Sex Couples to Seek Marriage Licenses

News that Indiana has just made it a crime for same-sex couples to apply for a marriage license has started to creep into my Twitter feed. The National Journal's website, for example, claims:
Lawmakers in the Hoosier State have updated a 1997 law that makes it a felony to falsify information on marriage license. So, any couple of the same sex filling out those forms would automatically violate the law since there are only sections for one male and one female.

The law now states that it is a Level 6 felony, punishable by up to 18 months in prison and a fine of $10,000. The old law had a punishment of up to three years in prison.
This is a really misleading way to frame what's happened in Indiana.

This year, Indiana updated its entire criminal code criminal code, moving from a four-tiered system of felonies to a six-tiered system. It has been a Class D felony in Indiana since 1997 to submit false information on an application for a marriage license. Class D felonies are punishable by six months to three years in prison and fines up to ten thousand dollars. After the revised criminal code goes into effect next year, submitting a false application for a marriage license will now be a Level 6 felony, the lowest tier. Level 6 felonies are punishable by up to eighteen months in prison and fines of up to ten thousand dollars.

Indiana has not updated or amended its 1997 law forbidding criminalizing false marriage applications. This law may affect same-sex couples since Indiana's marriage application includes marked spaces for a single male applicant and a single female applicant. So, a same-sex couple would have to knowingly "misrepresent" the gender of on or the other applicants in order to submit the form. Doing so might theoretically trigger the state's license falsification law, though there are, as yet, no reports of the law being applied to same-sex couples seeking to be married in Indiana. Also, it is not clear that the law could be applied to same sex couples submitting marriage applications under the terms of the First Amendment.

I do not mean to let Indiana off the hook. The state is deeply hostile to same sex marriage. Marriage has been defined by law as a union of one man and one woman only in the state since 2004, and the state legislature is currently considering action to similarly define marriage in the state constitution. It would not surprise me to learn that the 1997 marriage application falsification act was somehow aimed at forestalling same-sex marriage, but I can't find evidence either way on that issue this morning.

The point is that there is absolutely nothing new here, except Indiana's revised criminal code, which is, by most accounts, a sensible set of reforms that, among other things, makes it easier for minor crimes to be expunged from individual records and increases protections against employment discrimination for ex-convicts.

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