Indiana law could jail clergy for same sex marriages

UPDATE: from Bilerico:

Indiana has not created new laws with regard to same-sex marriage and the changes to existing law do not change the legal landscape other than to lower the penalties for infractions of this law. This new concern doesn't stem from new law, but the confluence of a 1997 law criminalizing false information on a marriage application, the 2003 law banning same-sex marriage in Indiana, and the slow-moving modernization efforts, which have been ongoing for nearly a decade (and which has not rolled out to all of Indiana's 92 counties.)

What this incident actually proves is a bigger point about how these marriage bans are mean-spirited and discriminatory in addition to not being well thought out. It says a lot about the unintended consequences of such laws when two loving people, who simply want to share a life together, have to worry about potentially breaking the law just to ask to be married.

Friends of Jake blog notes the latest from Indiana and marriage equality. Clergy and others can be arrested and fined andsent to jail for performing same sex marriages:'

This is quite astonishing. It can't be Constitutional, either.
In what appears to be a rather massive violation of the freedom of religion, the Republican party in Indiana appears to have amended the state criminal code to either make it a crime, or confirm that it remain a crime, for clergy to conduct weddings for gay couples. ...
The amendment to the criminal code, which will go into effect on July 1, 2014, makes it a misdemeanor, punishable by up to 180 days in jail and a fine of $1,000 for clergy “solemnize” a marriage of two men or two women.

From the Northwest Indiana Times

A same-sex couple applying for a marriage license in Indiana, where gay marriage is expressly prohibited by law, could face up to three years in prison for submitting the application to their county clerk -- even if it's denied.

A 1997 state law declares it a Class D felony to submit false information on a marriage license application or lie about the physical condition, including gender, of a marriage license applicant.

Two men or two women seeking to marry inevitably would trigger the law, as the state's electronic marriage license application specifically designates "male applicant" and "female applicant" sections for gathering required background data.

It's not known how often Hoosiers, gay or straight, are prosecuted for submitting false information on a marriage license application.

In any case, the recently approved reform of the state's criminal code will, starting July 1, 2014, drop the crime to a Level 6 felony, punishable by a maximum of 18 months in prison and a potential fine of up to $10,000.

The law also penalizes clergyman, judge, mayor, city clerk or town clerk-treasurer who solemnizes a marriage between two people of the same gender. Those who conduct a gay marriage ceremony can be charged with a Class B misdemeanor, punishable by up to 180 days in jail and a fine of up to $1,000.

More coverage here.

Comments (12)

So how is this not restricting religious speech?

Andrew Gerns

Sounds like a civil disobedience scenario just waiting to happen.

Freeman Gilbert

Another good reason for clergy NEVER to act as agents of the state. Someone posted the good idea that every wedding document should be signed by a local Justice (or Notary here in Florida) even if the Blessing is in a church.

Back in Texas, as I recall, clergy needed a valid marriage license to perform a wedding, because at that point they are operating as an agent of the State ("By the power vested in me by God and the State of Texas, I now pronounce you husband and wife.") Solution: get the Church out of the marriage business. Make it a civil affair that can be followed up with a blessing, but stop having clergy perform the actual legal procedure.

Bill Dilworth

How quickly we jump to our own agendas on church v state when it comes to marriage. The real, underlying issue here is Indiana's homophobic bigotry that it seeks to reinforce through the marriage code. In so doing, I hope they have gone a bridge to far.

How quickly we jump to the conclusion that we are the arbiters of what the real, underlying issue is, and what agendas are proper or not.

For me, the underlying issue is the power that the Church has given the State in agreeing to have its clergy act as State agents. In so doing, they have forfeited their ability to decide entirely for themselves for whom they will perform wedding ceremonies.

Bill Dilworth

Perhaps I am reading the whole article incorrectly, but as I understand the article. It is irrelevant if the clergy member is acting as an agent of the state. The way I read the article, the act of performing the ceremony s itself illegal, whether or not there is an actual state issued marriage involved. In other words, the state is dictating what religious ceremonies a church can perform, whether or not it is recognized by the state.

I'm having the same confusion Rob Huttmeyer is having. Is this ONLY regarding civil marriage? Or is Indiana saying they will prosecute clergy who perform same-sex RELIGIOUS marriage ceremonies which are not recognized by the state? Some clarification would be appreciated.

-Cullin R. Schooley

Rob and Cullin, I read the article as saying that that clergy cannot perform a same sex ceremony while trying to pass it off as is a legal wedding. It turns out that the law is so vaguely worded that its not quite clear what the offense listed ("solemizing" a marriage ceremony) refers to. But it's hard for me to imagine that even the yahoos who wrote the law actually intended to dictate the purely religious ceremonies a religious group can perform.

Maybe there's someone in Indiana who can give more information?

Bill Dilworth

This gay/political Hoosier blog maintains that just about everything the media has presented about this bill is flat wrong:

Bill Dilworth

This has a great similarity to the law originally drafted for Nigeria. The same confusion, How can you have a legal marriage when the law already prohibits it ?

Perhaps the same people drafted both.

America has been exporting this culture war for so long, it's almost possible .........

Martin Reynolds

As it turns out, things are not exactly as extreme as they seem:

The point is, if a same-sex marriage isn't legal in a state, it isn't legal. Therefore, clergy cannot officiate at a ceremony that they call a marriage and sign a marriage license. The couple can't even GET a marriage license. However, I see no bar to a religious ceremony involving a blessing. No civil paperwork required!

Everyone just breathe...

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