While it seems nearly every other state is taking at least baby steps toward equality, Indiana has decided to go against the grain by highlighting a state law that makes it a felony offense to apply for a gay marriage license.
To be clear, the 1997 state law that declares it a Class D felony to submit false information on a marriage license applications wasn’t expressly aimed at same-sex couples.
However, because the state’s electronic marriage license application system specifically designates “male applicant” and “female applicant” in its data gathering sections, same-sex couples would obviously appear to violate the law.
“Applicants for marriage do sign their paperwork under penalty of perjury,” Tippecanoe County Clerk Christa Coffey told WLFI-TV. “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.”
“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 went on.
A Class D felony carries a possible penalty of six months to three years in jail and a possible fine of up to $10,000.
Anyone conducting a gay marriage is also in violation of state law, and can be charged with a Class B misdemeanor that is punishable by up to 180 days in jail and a fine of up to $1,000.
To be clear here, Indiana has passed no new legislation for this to happen and it isn’t clear how often this penalty has been invoked, against straight or gay couples. It seems, however, there is now an appetite among local and state officials to use the scope of current law to further emphasize that Indiana does not accept same-sex marriages.
Why do this now? We are of course speculating here, but it could be a reaction to the many lawsuits that are being filed in other states by same-sex couples and on behalf of same-sex couples who are seeking the right to marry.
Highlighting that applying for a marriage license in Indiana is a felony if you are a same-sex couple may be a tactic to try to deter same-sex couples from taking to the courts to sue for marriage equality because couples in other states have in the past used a denial of a marriage license to trigger a lawsuit and have held up that denial as evidence in court of a direct injury or injustice caused by a state’s same-sex marriage ban.
So, under risk of a three-year jail term and a $10,000 fine, same-sex couples may now be deterred from embarking on that journey.
Perhaps we are giving those officials prepared to invoke the penalty too much credit here though. Simply, they may have wanted the chance to reinforce their bigotry.
In terms of the wider legal landscape, Indiana lawmakers will next year attempt to take the next step in enshrining discrimination in the state constitution by passing an amendment to codify the state’s 2004 statutory ban on same-sex marriage, an amendment that would also ban civil unions.
It does appear that, unlike in previous years, there may be appetite and impetus enough to pass the amendment through the legislature a second time (having received first approval in the 2011-2012 session). Whether it will survive a public referendum is unclear, but current polls suggest it would be a tough fight to defeat the amendment.
However, there is now the little matter of the Proposition 8 federal case with which to contend. While it is true that the ruling to overturn Proposition 8 only technically affects California law, Judge Vaughn Walker’s 2010 findings of fact and opinion set out in no uncertain terms why it is that constitutional bans against same-sex marriage violate the U.S. Constitution.
When you add this to the strong Supreme Court DOMA Section 3 decision, there may be solid or even fruitful ground to launch a legal fightback.
In the meantime though, it seems some officials in Indiana are prepared to go out of their way to reinforce the state’s discriminatory legal framework.
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