Indiana's gay marriage debate highlights possible crimes

INDIANAPOLIS -- Indiana's gay marriage ban is drawing renewed national attention in the blogosphere this week because of little-known provisions in state law that potentially criminalize the matter.

The laws make it a felony for a same-sex couple even to apply for a marriage license and a misdemeanor for a clergy member to solemnize such a marriage.

But while several blogs portray those crimes as new laws passed this year by the Republican-controlled General Assembly, they've been on the books for more than a decade.

They date back at least to 1997, when the state's marriage laws were recodified by the legislature. And they may have been on the books much longer, since they don't specifically address same-sex marriage. Instead, they generally address perjury on a marriage license application and attempts to perform marriages not allowed by law.

It was a story published last weekend by The Times of Northwest Indiana that apparently sparked attention from national blogs. The Times' story noted that the laws were old, and it also included mention of a change in the penalty for one of them as part of the legislature's overhaul of the entire criminal code this spring. (The legislature didn't change the substance of the law, but it lessened the penalty.)

Sample headlines on blogs this week, however, present a different picture: "New Indiana Law Makes It A Felony For Same-Sex Couples To Apply For A Marriage License," said The New Civil Rights Movement; "Indiana GOP passes law making it a crime for clergy to perform gay weddings," said Americablog; and "Indiana Edits The First Amendment," said an Esquire magazine blog. (The Esquire blog later posted a clarification of the timing issue.)

Readers of those blogs have not been shy in expressing their outrage to Gov. Mike Pence, with many posting protests about the laws on the Republican's official Facebook page.

The Indiana Law Blog laid out background surrounding the little-noticed criminal penalties. The blog is authored by Marcia Oddi, an attorney.

It's unclear whether same-sex couples who have unsuccessfully tried to marry in Indiana or those who have performed weddings for such couples have ever been targeted using those criminal laws.

The provisions at issue are part of Indiana Code 31-11-11. Here is what they say.

Section 1 says that "a person who knowingly furnishes false information to a clerk" when applying for a marriage license commits a Class D felony. (That carries a potential punishment of up to three years in prison or a $10,000 fine.) Since a marriage license application contains sections for the male applicant and the female applicant, a same-sex couple could be seen as providing false information. Another section making it a crime to provide false information about an applicant's "physical condition," which could include gender, also is a Class D felony.

And Section 7 says a person who "knowingly solemnizes a marriage of individuals who are prohibited from marrying" commits a Class B misdemeanor, which carries a maximum 180-day jail sentence or $1,000 fine. While Indiana bans same-sex marriage, some churches allow their clergy to perform same-sex unions.

The recent criminal code overhaul will convert Indiana's felony system, which currently uses classes A through D, to felony levels 1 through 6 in July 2014. That will result in changes for all of the state's felony crimes. As part of that effort, the legislature has reclassified the marriage license application perjury law to a Level 6 felony.

That will have the impact of lessening the potential penalty to a maximum 18 months in jail or a $10,000 fine under the new felony classification scheme.

Indiana passed its same-sex marriage ban in 1986. Key lawmakers and Pence support legislative action next year that would put a proposed constitutional gay marriage ban on the ballot in November 2014, but gay-rights activists have grown increasingly confident about fighting the amendment based on recent polls.