How to Get Arrested for Marrying Same-Sex Couples

by Law Meets Gospel in LMG Content, marriage

There has been a lot of hubbub going around news outlets, blogs, and social media about how Republicans have changed the law in Indiana (my beloved home state) to make it a crime for same-sex couples to apply for  marriage licenses and “for clergy to conduct weddings for gay couples.” (Emphasis from Americablog.)

Nothing New Here

As several sources have pointed out (again, blog and news outlet alike), these accounts are off target. The laws are not new, and they do not explicitly target same-sex couples. The only thing that is new is the name Indiana gives to the category of crime committed.

Submitting false information when applying for a marriage license used to be a Class D felony. As part of a substantial overhaul to Indiana’s criminal code this year, it’s  now called a Level 6 felony. That’s why there are versions a and b for many of these, with version b coming into effect July 1, 2014. It is, as it was, punishable by a sentence of six months to two and a half years (the advised sentence being one year) plus a fine up to $10,000. Ind. Code § 35-50-2-7.

“Solemnizing” a marriage between two people ineligible to get married in Indiana is a Class B misdemeanor, which is punishable by a prison sentence up to one year and a fine up to $1,000. Ind. Code § 35-50-3.

As for the age of the prohibitions on same-gender marriage (Ind. Code § 31-11-1-1), falsifying  (Ind. Code § 31-11-11-1), and improperly solemnizing them (Ind. Code § 31-11-11-7), they were passed in 1997 and likely became effective that same year, along with the current prohibition on same-gender marriage (Ind. Code § 31-11-1-1). Those who remember 1997 will recall that many were consumed by the same groundswell that led
to the Defense of Marriage Act. This movement was bipartisan: President Clinton signed DOMA, and Evan Bayh was governor when Indiana’s statutes were passed.

How to Get Arrested

Indiana law provides that anyone “who knowingly furnishes false information” on a marriage application or “who knowingly solemnizes a marriage of individuals who are prohibited from marrying” commits a crime. If you’re a same-gender couple, a bigamist, cousins, seventeen without parental consent, or under seventeen, you’re prohibited from marrying (at all, each other, or again, as the case may be). To be arrested for what I’ll call a wedding crime, you’ll need to falsify the relevant information barring you from marrying your aspired spouse to hide the facts that you’re ineligible. Like every other intentional lie on a legal document, that amounts to perjury, which can bring jail time.

If you’re a person authorized by the state to “solemnize” a marriage, it’s a little less clear what steps you’ll need to take to get arrested. First I imagine it will be very difficult to find an ineligible couple who has the right paperwork (a marriage certificate). Once you’ve done that, you’ll need to “solemnize” the marriage. What does that mean? There has been confusion in the aforementioned sources (here and here), which claim that it might break the law for clergy to conduct a “wedding service” or “have a religious wedding ceremony” for same-gender couples.

What Does Solemnizing Mean?

Solemnizing isn’t defined in the
statute, but it clearly has a narrow, technical meaning as used in the marriage
statutes. As far as I can tell, it basically means doing whatever the person presiding and the couple feel are necessary to solemnize plus the required paperwork. Check out Ind. Code § 31-11-4-16 for the closest thing to a definition the
statute has: fill out the certificate and a duplicate, then mail it to the clerk.

Marriage is an area where the State has, for historical and cultural reasons, deputized the Church to perform some of its administrative duties. People authorized to solemnize marriages include certain government officials and those religious leaders authorized within their own traditions to do so. Ind. Code § 31-11-6-1.
There are a couple special categories because their faith traditions’ structure does not clearly point to someone under the broad category for clergy, but on the whole this is the group most religious weddings fall under: “A member of the clergy of a religious organization (even if the cleric does not perform religious functions for an individual congregation), such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi.” Ind. Code § 31-11-6-1(1).

What Can a Person Do to Recognize a Same-Gender Union?

Importantly, solemnizing would not include anything anyone calls a wedding if it doesn’t include the required paperwork. It isn’t the religious ceremony that constitutes the solemnizing. That is just a tradition and, in the case of many religious groups, a rite that we accompany the solemnization with.
If the couple does not have a marriage license and certificate, there simply cannot be a marriage under the law. So if you don’t want to get arrested—and I strongly recommend you take that position—but you do want to celebrate, bless, witness, commit a same-gender relationship, go ahead and do it. You can even call it a wedding and the couple married. The First Amendment protects religious groups from the government defining what rites it can and cannot perform and for whom. It also protects a person’s calling whomever she likes her spouse, calling that ring on her finger a “wedding ring,” and celebrating a “wedding anniversary” every year.
What you can’t do (in Indiana and most of the rest of the country) is demand the state recognize a union as a marriage and grant all the benefits the law brings without following the law. It is sort of like our ability to go by whatever name we want: that ability doesn’t come with the power to demand the government recognize that name without going through certain verification procedures.  The question about same-gender marriages is, of course, a developing topic, as the United State Supreme Court has just demonstrated.

Lawyerly disclaimer: Please, don’t go out and say I told you to try to get arrested. I didn’t. In fact, I think it’s an unwise course to take. I advise against getting arrested, intentionally or otherwise.

Have a legal question that affects religious organizations? E-mail it to me at  questions@lawmeetsgospel.com.

Tagged: Tags      

Related Posts

One thought to “How to Get Arrested for Marrying Same-Sex Couples”

  1. Thank you for your thoughts on this. I appreciate the legal interpretation you have offered and how it relates to the religious rite we perform and often think of as “the” thing that makes a marriage a marriage, which is not the case in the eyes of the state.

Comments are closed.