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Correction: Indiana’s ‘New’ Gay Marriage Law Isn’t New

by David Badash on July 10, 2013

in News

Recently, news broke that the state of Indiana had a “new law,” based on a 1997 law, that makes providing false information on a marriage license application a felony. Many news sites and blogs reported on the story in similar fashions, and The New Civil Rights Movement was one of the first. In an article titled “New Indiana Law Makes It A Felony For Same-Sex Couples To Apply For A Marriage License,” we reported the news this way:

Indiana lawmakers have revamped a 1997 law that makes furnishing false information on a marriage license a class D felony. Beginning July 1, 2014, a same-sex couple applying for a marriage license in the state of Indiana will be guilty of a Level 6 felony, punishable by 18 months in prison and a $10,000 fine. 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, punishable by up to 180 days in jail and a fine of up to $1,000.  Any clerk who issues a license to a same-sex couple would also be guilty of a Class B Misdemeanor.

The Indianapolis Star, today, in an article titled “Indiana’s gay marriage debate takes strange turn in blogosphere,” reported the news this way:

The laws make it a felony for a same-sex couple even to apply for a marriage license and a misdemeanor for a clergy member to solemnize such a marriage.

But while several blogs portray those crimes as new laws passed this year by the Republican-controlled General Assembly, they’ve been on the books for more than a decade.

They date back at least to 1997, when the state’s marriage laws were recodified by the legislature.

With the exception of the title The New Civil Rights Movement used in some versions (our Facebook version did not use the word “New”) that is exactly what we reported.

We have removed the word “New” from the title because we want to be as accurate as possible and we were not. We apologize.

“It was a story published last weekend by The Times of Northwest Indiana that apparently sparked attention from national blogs,” the Star adds:

The Times’ story noted that the laws were old, and it also included mention of a change in the penalty for one of them as part of the legislature’s overhaul of the entire criminal code this spring. (The legislature didn’t change the substance of the law, but it lessened the penalty.)

Sample headlines on blogs this week, however, present a different picture: “New Indiana Law Makes It A Felony For Same-Sex Couples To Apply For A Marriage License,” said The New Civil Rights Movement; “Indiana GOP passes law making it a crime for clergy to perform gay weddings,” said Americablog; and “Indiana Edits The First Amendment,” said an Esquire magazine blog. (The Esquire blog later posted a clarification of the timing issue.)

Again, our reporting made exceptionally clear that “lawmakers have revamped a 1997 law that makes furnishing false information on a marriage license a class D felony.”

Former Indiana residents Jerame Davis, and his partner Bil Browning, who run Bilerico, took strong issue with reports around the Internet, including ours, and published “Slow Down: Indiana’s ‘New’ Marriage Law Isn’t Real.”

Everything you’ve read about this ‘new’ Indiana law that makes criminals out of same-sex couples who apply for a marriage license is wrong. Dead wrong,” Davis writes:

The consternation for this law is coming about because of a change in how Indiana processes marriage applications. As part of an overall effort to modernize and digitize all state public records, Indiana has been switching – county by county – to a digital marriage license application form.

On the digital form, there are specific gender designators for male and female that cannot be changed. Previously, on the paper form, one could mark out male or female and write in the appropriate gender to make the form correct. On a digital version, this isn’t possible.

So, some enterprising reporter put two-and-two together and wrote up a story about how there was a new law (no, it’s an updated law that only changed the penalties) that would criminalize the act of any same-sex couple who filled out the electronic form because they would, by default, have to lie about the gender of one of the applicants.

Davis adds:

Without an intent to fraudulently obtain a marriage license, there is no crime in question. Proving intent to defraud the state to obtain an illegal marriage would be a stiff burden for any prosecutor to take on, especially with a civil disobedience/protest defense available. What’s more, even if such a case were miraculously successful, there are a great many avenues of appeal that would almost certainly overturn any conviction of this type.

And concludes:

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.

The real headline for this story should have been: Under existing state law, new marriage license procedures will make it difficult for same-sex couples apply for a marriage license. But that’s not a sexy headline at all, is it?

So, is it fair to call the law “new”? Given that the penalties are different and the classifications are different, the argument could be made but really, “new” is not accurate. We absolutely stand corrected on that word. The law is not new. Additionally, with additional information now available, we should have gone back sooner to note the changes were initiated by, as Davis wrote at Bilerico, “an overall effort to modernize and digitize all state public records” which affects not just marriage laws, but laws across the board.

Davis’ reporting would likely negate our point that “Indiana marriage license forms have a space for ‘male applicant’ and ‘female applicant,’” so “any same-sex couple filling out the form would automatically violate the law.” The state is moving to a digital model, so by 2014 there would be no paper forms.

Meanwhile, others have weighed in as well.

The Indiana Law Blog as well took our title to task — although called our other reporting “correct.” In “What’s Wrong With This Headline? ‘New Indiana Law Makes It A Felony For Same-Sex Couples To Apply For A Marriage License,’” Marcia J. Oddi specifically points to our piece and writes:

This is one of those headlines that has popped up all over the internet (eg here) in the past few days. It is wrong. The linked story begins:

Indiana lawmakers have revamped a 1997 law that makes furnishing false information on a marriage license a class D felony. Beginning July 1, 2014, a same-sex couple applying for a marriage license in the state of Indiana will be guilty of a Level 6 felony, punishable by 18 months in prison and a $10,000 fine.

What is correct is that provision is not new, the prohibition has been in effect since 1997:

IC 31-11-11-1
Sec. 1. A person who knowingly furnishes false information to a clerk of the circuit court when the person applies for a marriage license under IC 31-11-4 commits a Class D felony.
As added by P.L.1-1997, SEC.3.

The “revamp” this year is the result of the passage of the massive HEA 1006, the 432-page bill that made many changes to the criminal code, particularly in the area of sentencing, including changing the nomenclature. Sentences have been reclassified so that most “Class D” felonies are now “Level 6″ felonies.

What the story does bring to light is a variance between the penalty provision of IC 31-11-11, and the procedures set out in IC 31-11-4.

In another post, Oddi examines aspects of the paper versus digital “forms.”

Bottom line: Regular readers know The New Civil Rights Movement well, and know we do our best to be accurate — and we’re right, correct, and accurate the vast majority of the time. But if we write something that needs clarification or correction, we are certainly not only happy to make that change, but we believe we are journalistically required to do so — and to apologize as well. We apologize for the errors.

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bgryphon July 10, 2013 at 5:30 pm

Actual journalism- so hard to find anywhere else these days. Thank you for making (overly?)clear the details in this story.

JayJonson July 10, 2013 at 6:56 pm

In this tortured correction, you fail to correct the worst part of the reporting here. Not only is the law not new and has nothing per se to do with same-sex marriage, but it certainly does not threaten to put applicants for marriage licenses in jail. Nor does it threaten clergy from conducting same-sex marriages or commitment services. It does punish people who plan to commit fraud by lying about their gender or other impediments to getting a marriage license (like already being married or not being old enough). The original reporting was sensationalistic and inaccurate, and your correction does not "correct" the worst part of the story.

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