Tuesday, July 09, 2013

Ind. Law - The story that will not die: "Same-sex couples seeking marriage could be charged with perjury"

Earlier today the ILB pointed out problems with the claim that "New Indiana Law Makes It A Felony For Same-Sex Couples To Apply For A Marriage License." After dismissing the "new law" issue, the ILB post concluded by pointing out that in Sadler v. Morrison, the 2005 challenge to the prohibitions against same-sex marriage in Indiana, the plaintiffs sought an injunction requiring the clerk to issue licenses rather than filing applications and having them denied. Using this route, IC 31-11-11-1 and its penalty never came into play.

Regardless, this evening the Indianapolis Star has posted an unsigned AP story, quoting a WLFI-18 story by Krista Henry, dateline Lafayette, headed Same-sex couples applying for marriage could face jail time. Some quotes from the WLFI story:

TIPPECANOE COUNTY, Ind. (WLFI) - Same-sex couples applying for a marriage license in Indiana, where gay marriage is prohibited by law, could face prison time for submitting the application to their county clerk, even if it's denied.

"Applicants for marriage do sign their paperwork under penalty of perjury,” Tippecanoe County Clerk Christa Coffey said. “So if there is something on there that they know is false, then they would be eligible to be charged with making a false statement or committing perjury, which is a Class D felony."

Coffey said two men or two women seeking to marry would trigger the 1997 law.

Currently the state's electronic marriage license application specifically designates "male applicant" and "female applicant" sections for gathering required background data.

"In Indiana the law clearly states that one man and one woman are the only two who can apply for a marriage license and can have a marriage ceremony performed," Coffey explained.

Those who were to submit false information on the marriage license could face up to 18 months in prison and a potential fine of up to $10,000.

The Star version seems to go further:
Indiana’s current electronic marriage license application specifically designates “male applicant” and “female applicant” sections for gathering required background information. Coffey says that means if two men or two women applied for a marriage license, one of them would commit perjury.

“In Indiana the law clearly states that one man and one woman are the only two who can apply for a marriage license and can have a marriage ceremony performed,” Coffey said.

The Star version includes a photo of the beginning of the electronic application.

Some ILB thoughts: So do applicants have the option of a paper application, or is using the electronic form mandatory? Is there a statute denying use of a paper application where e-filing is available, or not? With a paper form, the applicants may, as Doug Masson writes:

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.
Do applicants have the option of going to a county that doesn't have e-filing? The answer to this question is "no." IC 31-11-4-3 provides: "Individuals who intend to marry must obtain a marriage license from the clerk of the circuit court of the county of residence of either of the individuals."

Interestingly, the marriage license e-filing system, which has been installed across the State within the past several years, is a product of the Indiana Supreme Court's Judicial Technology and Automation Committee (JTAC). According to a map on their website, all but 18 counties currently are using the e-filing system.

JTAC has prepared a factsheet on the "Marriage License E-file System." One of its stated selling points is that "Code requirements [will be] enforced by the application." In other words, couples using the electronic form only have the options provided.

One question that may be asked is, is this enforcement of the code requirements, including the state's DOMA, the responsibility of the judicial branch? Or, under our constitutional doctrine of separation of powers, that is the role of the executive branch: "Art. 5, Section 16. The Governor shall take care that the laws are faithfully executed."

Posted by Marcia Oddi on July 9, 2013 08:12 PM
Posted to Indiana Law