Gay Couples In Indiana Could Be Charged With A Felony For Filing A Marriage Application

The Northwest Indiana Times' Dan Carden has a story cautioning gay couples in Indiana who may be emboldened by the landmark Supreme Court decision in U.S. v. Windsor, which struck down the federal Defense of Marriage Act as a violation of the Fifth Amendment. Carden discusses the criminal penalty gay couples in Indiana face if they attempt to apply for a marriage application in Indiana.

In 1997, the Indiana General Assembly passed a law that makes it a Class D felony to submit false information on a marriage application. The electronic application requires the applicants to designate the gender of each applicant, which limits the choices to one female and one male applicant. A gay couple could only submit the application by misrepresenting the gender of one of the applicants, triggering the penalty under the 1997 law.

A Class D felony carries a penalty of up to three years in prison. The penalty would be lowered under a new sentencing reform law that takes effect on July 1, 2014, which reduces the crime to a lower 6 felony, punishable by a penalty of up to 18 months in prison and a fine of up to $10,000. In addition, any person who solemnizes a gay marriage in Indiana can be charged with a class B misdemeanor, punishable by up to 18 months in prison and a fine of not more than $1,000.

Carden's story says it is not known how often straight or gay couples in Indiana are prosecuted under the 1997 law. I know of just one example. The overzealous prosecutors in the Charlie White case misinterpreted the law's coverage to include misrepresentations of an applicant's address. The trial judge should have been obligated under the law to grant a motion to dismiss that charge against White as requested by his attorney prior to trial since his physical address was not material information related to the granting of the marriage license but refused to do so. White, who stated on his marriage application that he still resided at his ex-wife's home, was found guilty of violating the law after the prosecutors convinced the jurors that he did not live in the basement of what had been his former marital residence at the time he completed the marriage application.

What Carden's story doesn't discuss is what happens to Indiana gay couples who are married in a state or country where gay marriage is legal. After Windsor, gay couples in states which legally recognize their union will be able to obtain benefits under more than 1,000 federal laws that previously conferred benefits for straight married couples. The law is less clear under federal law for gay couples legally married but living in states like Indiana which do not recognize their marriage.

Many Indiana companies offer domestic partner benefits to their married gay employees. Prior to Windsor, the value of the health insurance benefits to a gay employee's spouse was taxable. According to a story by Dan Human in the latest edition of the IBJ, Eli Lilly's tax department has determined that the value of those health benefits won't be taxable for employees of the company who live in states like New Jersey where gay unions are recognized but will continue to be taxable in states like Indiana where gay unions are not recognized. Other tax and employee benefits lawyers are unsure of how the decision will impact gay employees, telling employers they should wait until federal agencies like the IRS offer guidance on the issue. If federal agencies allow for a state-by-state determination of whether gay couples will receive tax benefits under federal law, there will undoubtedly be a plethora of equal protection lawsuits filed by gay couples living in states that don't recognize their marriage.

One federal law where gay couples won't have to wait for future guidance is with respect to immigration benefits. USCIS has already indicated that it will now consider applications filed by same-sex couples seeking immigration benefits under federal law. The agency kept track of marriage-based permanent resident cases it has denied over the past two years only because both applicants were of the same gender and has started issuing notices to those applicants reversing their previous denial orders. Gay couples residing in Indiana who were married in a state or country where their marriage is legally recognized are eligible to apply for immigration benefits based on marriage, even though Indiana doesn't recognize their union, because federal immigration law makes its determination based on where the marriage was granted, not where the couple resides.