Journal-Gazette Propagates False Attack On Northwest Indiana Times Reporter

An editorial writer for the Fort Wayne Journal-Gazette, like certain other legal blogs that profess professionalism, continue to criticize a news report by the Northwest Indiana Times' Dan Carden for doing something he never did. Without naming Carden, the Journal-Gazette's Rebecca Green falsely claims in an opinion piece, which doesn't mention Carden or his newspaper by name, that his story claimed Indiana had enacted a new law making it a felony for gay couples in Indiana to get married.

By noon, a story coming out of northwest Indiana suggesting that changes to state law now made it a felony for same-sex couples to try to get a marriage license had gone completely viral. I saw it on Facebook. I saw it on local news station websites. And I saw it posted on political blogs, all taking a potshot at Indiana’s clearly backward nature.

But here’s the thing. It wasn’t true in all the ways that mattered.

The problem is that Green, like others commenting on the story in social media and news reports elsewhere, failed to read the actual story Carden had written. If she had, she would have seen that there was nothing in his story that suggested the law making it a felony to make misrepresentations on a marriage application was a new law. What he actually reported was the following:

A same-sex couple applying for a marriage license in Indiana, where gay marriage is expressly prohibited by law, could face up to three years in prison for submitting the application to their county clerk -- even if it's denied.

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.

When I read Carden's story, I took it as a cautionary reminder to gay couples in Indiana who might be emboldened to rush down to the county courthouse to get married after the U.S. Supreme Court's landmark decision in U.S. v. Windsor striking down the federal Defense of Marriage Act as unconstitutional. I blogged about his story in a blog post titled, "Gay Couples In Indiana Could Be Charged With A Felony For Filing A Marriage Application." As I wrote then:

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.

Shortly thereafter, people began posting comments on social media, commenting without attribution to either Carden's story or my blog post, suggesting that Indiana had enacted a new law making it a felony. Several blogs picked up on the meme and wrote about the law, once again without attribution to the original source, claiming it was a new law the Indiana legislature foisted upon us. That triggered a set of posts by other blogs and now mainstream new reports criticizing the original news report, again without attribution, for mischaracterizing Indiana's law regarding penalties for marriage license applications as a new law.

The point that everyone continues to miss that I raised in my blog post is that the only known person who has been prosecuted for violating the 1997 aimed at gay couples is a straight man, former Indiana Secretary of State Charlie White. He was charged and convicted of a Class D felony for claiming that he resided at the home of his ex-wife when he completed a marriage license application for his new marriage. That outrage has been highlighted nowhere in mainstream news media reports, blogs or social media. Indiana lawmakers never intended such a result. Many couples who shack up before they get married list separate addresses on their marriage application form even if they are actually residing together at the time they complete the form. It goes back to the law of unintended consequences. When lawmakers seek to enact laws based on their personal animus towards groups of people they dislike, the collateral damage from their actions can be worse than the supposed evil they sought to remedy when they get into the hands of overzealous prosecutors.