Charging Against a Tide



Patrick is a mid-40 year old geek with an undergraduate degree in mathematics and a master's degree in Information Systems. Nothing he says here has anything to do with the official position of his employer or any other institution.

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30 Responses

  1. Avatar Jaybird says:

    Homosexual couples in Indiana, I beg you: pick someone with a last name about as awesome as “Loving” to be the first ones arrested for this.

    “Hugs v. Indiana”, maybe.

    I ask because this will make it to the Supreme Court. And they will decide for Hugs.Report

  2. Avatar Tod Kelly says:

    How sure are we this is a thing?

    When I google “indiana marriage felony” I get no hits from any news source, not even local ones from the state.Report

    • Avatar Mike Schilling in reply to Tod Kelly says:

      What Tod said. Tons of hit, not one from a news source.Report

    • Avatar J@m3z Aitch in reply to Tod Kelly says:

      Here’s the Indiana General Assembly’s source for tracking bills, specifically the marriage and family law page. If you click on a resolution it will provide a pdf link to the bill’s text. Perusing those, I see no such language, so I’m dubious.Report

    • Avatar Patrick in reply to Tod Kelly says:

      It’s a thing. Found the Indiana code page.Report

      • Avatar J@m3z Aitch in reply to Patrick says:


        And is that the code as extant prior to this alleged bill (there’s no mention in the article of it having been signed into law yet, although that could just be an omission), or is it evident from the code that it’s a recent change? (sorry to be pushily pedantic, but I’m really curious, perhaps because it’s my native state).Report

        • Avatar Patrick in reply to J@m3z Aitch says:

          It’s a thing, but it’s not a new thing, really. It’s an older thing that popped up on somebody’s radar because they changed the penalization classification.

          (see second edit)Report

          • Avatar J@m3z Aitch in reply to Patrick says:

            Thanks. I appreciate both the new links, which really nail it down.

            As for the First Amendment issue on “solemnizing marriages,” I’d have to think longer about it, but I’m inclined to think there’s no constitutional violation. People, including ministers, who are authorized to solemnize marriages are given that authority under Indiana law, and can only exercise it within the bounds of that law. Since same-sex couples can’t legally marry (let’s call it a “certificated marriage,” to emphasize we’re talking about people who have received a marriage license, so that the marriage is intended to be recognized by the state), anyone who assists them in doing so– is de facto part of a conspiracy to violate the law, to commit a fraud.

            That doesn’t mean a minister can’t perform a same-sex commitment ceremony or a spiritual marriage ceremony–that ban clearly would be a constitutional violation–but that they can’t do so in an attempt to create an illegal marriage. For example, in Indiana people can legally marry without parental consent at age 18, and with parental consent at 17. If a minister knowingly performed a “certificated marriage” of 17 year olds without the parent’s consent, or a marriage of 16 year olds (with or without parental consent), would we say they had a First Amendment right to do so, or would we agree that they had conspired to violate a generally applicable law of the state, for which there is no First Amendment protection?

            Of course I oppose the ban on same-sex marriages, and would much prefer that this particular question not even be on the table for discussion. I also oppose the restriction of marriage solemnization to a particular class of individuals, instead of anyone 18 or older that the couple would like to officiate (and sign the license). (And so I enthusiastically applaud the fake divinity mongers who for a small fee will make anyone a minister in the Church of Whatever-the-Hell-It-Is; a great market response to an idiotic law.)Report

            • Avatar Patrick in reply to J@m3z Aitch says:

              People, including ministers, who are authorized to solemnize marriages are given that authority under Indiana law, and can only exercise it within the bounds of that law.

              This is the part where we need a lawyery type to chime in. If “having a marriage ceremony, sans license, but you’re married within a church” is just as much “solemnizing marriage” as “having a marriage ceremony, with license, and crossed ‘t’s and dotted ‘i’s”, then I’m standing by the assessment.

              If it takes “going through the entire legal process” == “solemnization”, then you’re probably right.

              The wrinkle might be if there is no separate classification. The definitions aren’t necessarily built to be mutually exclusive.Report

  3. Avatar Stillwater says:

    From the NWI link:

    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.Report

    • Avatar Stillwater in reply to Stillwater says:

      I left out a crucial part of the NWI story: A same-sex couple applying for a marriage license in Indiana, where gay marriage is expressly prohibited by lawReport

  4. Avatar Mike Schilling says:

    The new law also makes it a Class B Misdemeanor for a clergyman, judge, mayor, city clerk or town clerk-treasurer to perform a same-sex marriage,

    [Patrick sez] Now, there’s no link to the text of the law in the article, but I’m hard pressed to imagine that there isn’t a rather blatant First Amendment challenge in that clause…

    I disagree. A clergyman (or anyone else) has a First Amendment right to perform a marriage ceremony only so long as it doesn’t purport to create a legal mariage. Once it does, the state’s marriage laws apply.Report

    • So it probably depends on the wording. If the law says that clergy can’t register (or whatever the official term is) a same-sex marriage with the state, then there’s probably no violation of the clergy’s freedom of religion.

      However, if the wording of the article is correct, then it pretty clearly violates the First Amendment.Report

    • Avatar Sam in reply to Mike Schilling says:

      I’m licensed to perform marriages in West Virginia, and I don’t know the to this: does it matter what’s said in the ceremony? I thought the only thing the state worried about was the marriage certificate?Report

      • Avatar Tod Kelly in reply to Sam says:

        I’m just spitballing here, so take this with a grain of salt… but based on the timing of the passage of the original bill (combined with what surely seems to be a lack of necessity for it at all), I’m going to guess that the original law had nothing to do with gay marriage. It seems more likely that it may have been passed as part of the then-burgeoning freak-out about south-of-the-border “illegals” trying to get get permanent status to live in the US.

        I have a feeling this was passed to prevent on latino who had gotten status from pho-marrying another just to get that person status.Report

      • Avatar Kim in reply to Sam says:

        Well, in my state, you don’t need someone to perform a marriage ceremony. Just witnesses.Report

  5. Avatar Shazbot5 says:

    Can a level 7 cleric beat a level 6 felony wrap? Got to make the saving throw.Report

    • Avatar Mad Rocket Scientist in reply to Shazbot5 says:

      But which one?

      1) Paralyzation, Poison, or Death Magic
      2) Rod, Staff, or Wand
      3) Petrification or Polymorph
      4) Breath Weapon
      5) SpellReport

    • Avatar DavidTC in reply to Shazbot5 says:

      Why are they classifying their felonies with numbers _and_ letters, anyway? Turning a ‘Class D’ into a ‘Level 7’. Huh? Is that better or worse?

      In fact, is a Class D better or worse than a Class C? Is a Level 7 better or worse than a Level 8? What happens if they want to add a level…do they create Level 5.2, or do they move all crimes down? Or up? Or are the levels in order _at all_?

      Why use codes at all? This isn’t some frickin computer program where you have to index things. Classify them as ‘Severe’ and ‘Heavy’ and ‘Moderate’ and ‘Light’ or whatever.

      Or, actually, there already _are_ codes in the law…namely, what part of the law it is. Make them 23.3.4 Felonies or whatever.Report

  6. Avatar Kolohe says:

    The way I’m understanding the second link, the first link is factually wrong. The way it is *now*, a same-sex couple would be guilty of a felony; the change that’s going into effect next year changes it to ‘Level 6’ from ‘Class D’. The second link indicates to me that Indiana has done a wholesale revamp of their categorization of felonies, going from ‘class’ to ‘level’ – and says that level 6 will be lower than the old class D.Report

    • Avatar J@m3z Aitch in reply to Kolohe says:

      This sounds right, although I can’t find the actual text of that bill in the Indiana General Assembly page, either. If the bill actually exists, it’s actually a (very very very very) minor plus for same-sex couples.Report

  7. Avatar burnspbesq says:

    Stuff like this is why Section 2 of DOMA has to go, preferably by repeal, but by litigation if necessary.

    In a world without Section 2 of DOMA, LGBT Indianans who want to marry could just go somewhere else, get married, and Indiana would have to respect their marriage.Report

  8. Avatar DRS says:

    If this is true, it’s warp-speed to the planet of sore-loserdom, in the galaxy of suck-it-up-already.Report