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.
While it is not widely known, numerous mainstream American religions permit gay nuptials. The faiths include reform Judaism, Evangelical Lutherans, Episcopalians, and the United Church of Christ, among others.
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.
Solemnization of marriage between persons prohibited from marrying
Sec. 7. A person who knowingly solemnizes a marriage of individuals who are prohibited from marrying by IC 31-11-1 commits a Class B misdemeanor.
As added by P.L.1-1997, SEC.3.
The tricky part is coming up with a definition of what “solemnizing” is. Is solemnizing conducting the marriage service, providing the married couple with a document attesting to their marriage, and/or submitting that document to the state? Depending on what exact definition of solemnizing Indiana uses, preachers might be thrown in jail for practicing their faith.
One answer to this question appears to be in this section of the Indiana code, which makes clear that solemnization is something that happens before the marriage certificate is filed with the clerk:
Failure to timely file marriage license and duplicate marriage certificate
Sec. 8. A person who:
(1) solemnizes a marriage; and
(2) fails to file the marriage license and a duplicate marriage certificate with the clerk of the circuit court not later than ninety (90) days after the date the marriage was solemnized;
Note how solemnization is mentioned as something other than filing the marriage license. Solemnization is looking more and more like conducting a solemn wedding service. And that’s what priests and preachers and rabbis do. And it’s no business of the government telling them what they can and cannot do in their own church, synagogue or mosque.
A successful effort by the Indiana Republican party, which controls the state House and Senate, to legislate the permitted, and banned, practices of Jews, Lutherans, Episcopalians, and other mainstream faiths would appear to fly smack in the face of ongoing religious right efforts to brand the civil rights of gays as a threat to religion. In fact, it is anti-gay bigots who are now threatening to throw mainstream clergy in jail for simply practicing their faith.
The amended criminal code also addresses gay couples that apply for a marriage license at the county clerk. But, contrary to some reports that are saying the legislature made it a felony to apply for a “gay” marriage license, at least one Indiana newspaper is claiming that the legislature actually decreased the existing penalty for gay couples attempting to marry from a maximum of three years to 18 months.
What the amended law does is change the “crime” of applying for a “gay” marriage license from a Class D felony to a Level 6 felony – Class D was the lowest rung in the old system, Level 6 is the lowest rung in the new system. And with at least one Indiana press outlet claiming that the new Level 6 penalty is actually less than the old Class D, it’s not clear whether this might actually be a change for the better.
Along those same lines, it would be interesting to know whether it was illegal under the old criminal code for clergy to “solemnize” same-sex nuptials, or whether this is a new crime. Regardless, the state Republican party either made it a crime, or intentionally kept it a crime, in the amended criminal code they just enacted into law. And it’s creepy as hell that the state of Indiana thinks it can tell mainstream American religions how to practice their faith.
It’s one thing for Republicans to be anti-gay (and anti-black, anti-women, anti-Latino…), but I never thought I’d see the day they’d throw clergy in jail. That day just arrived in GOP-controlled Indiana.
UPDATE: So the story gets even more interesting. As I suspected, both laws were already on the books. Which still begs the question of why it’s illegal in Indiana for clergy to perform a gay marriage? The Republican legislature amended the very part of the law dealing with marriage penalties, and they chose to leave in place the part that makes solemnizing gay nuptials illegal. This, at the same time that anti-gay Republicans in the state, including the GOP governor, now want to pass a state constitutional ban on gay marriage, when such a ban already exists legislatively in the state.
Mind you, after the recent Supreme Court decision on DOMA, such bans – legislative or constitutional – are likely invalid under the US Constitution. But don’t let that stop Republicans from focusing like a laser beam on the most important issue facing their party – how to deflect attention away from the fact that they no longer have any ideas.