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Tuesday, July 09, 2013

Ind. Law - What's wrong with this headline? "New Indiana Law Makes It A Felony For Same-Sex Couples To Apply For A Marriage License"

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.

HEA 1006 makes the following change to IC 31-11-11-1, 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 Level 6 felony.
As added by P.L.1-1997, SEC.3. Amended by P.L.158-2013, SEC.307.

What the story does bring to light is a variance between the penalty provision of IC 31-11-11, and the procedures set out in IC 31-11-4.

Who designs the application for a marriage license? IC 31-11-4-4 sets out the requirements. Subsection (c) reads:

(c) The state department of health shall develop uniform forms for applications for marriage licenses. The state department of health shall furnish these forms to the circuit court clerks. The state department of health may periodically revise these forms.
IC 31-11-4-12 provides that the clerk may refuse to issue a marriage licenses in certain cases, and provides for a hearing on the issue, if requested:
Sec. 12. (a) If it appears that two (2) individuals do not have a right to a marriage license, the clerk of the circuit court shall refuse to issue the license. If the clerk refuses to issue the license and if requested by the individuals, the clerk shall:
(1) certify the refusal to the circuit court; and
(2) notify the individuals of the clerk's actions.
(b) At the earliest practicable time, the court shall hold a hearing on whether a marriage license should be issued to the individuals. The court shall notify the individuals of the time and place of the hearing. The hearing shall be held without a jury and may be held in court or in chambers. The court's finding concerning the issuance of a license is final.
(c) The clerk of the circuit court shall:
(1) issue; or
(2) refuse to issue;
a marriage license in conformance with the court's order.
(d) The individuals who intend to marry are not liable for costs for any actions taken under this section.
As added by P.L.1-1997, SEC.3.

The 2005 Court of Appeals opinion in Sadler v. Morrison sets out the procedure used in Indiana's earlier challenge. From pp. 4-5 of the opinion:

The predecessor to current Indiana Code Section 31-11-1-1(a) was passed in 1986. Similar statutes, commonly referred to as “Defense of Marriage Acts” (“DOMA”), have been passed by at least thirty-seven other states and the federal government. The relevant portion of Indiana’s DOMA at issue today states: “Only a female may marry a male. Only a male may marry a female.” Ind. Code § 31-11-1-1(a). All three couples meet the legal requirements for marriage aside from being of the same gender.

On August 22, 2002, the Plaintiffs filed a declaratory judgment complaint seeking an injunction requiring the Hendricks and Marion County clerks to issue marriage licenses to them because Indiana’s DOMA violated several provisions of the Indiana Constitution, namely, Article 1, § 23; Article 1, § 1; and Article 1, § 12. After the Plaintiffs filed a second amended complaint, the trial court granted the State’s motion to dismiss on May 7, 2003, for failing to state a claim upon which relief could be granted. The Plaintiffs now appeal.

In short, the plaintiffs sought an injunction requiring the clerk to issue licenses instead of filing applications and having them denied. Using this route, IC 31-11-11-1 and its penalty never came into play.

Posted by Marcia Oddi on July 9, 2013 11:34 AM
Posted to Indiana Law