Can Hoosier Clergy be Arrested for Conducting Religious Rites?

A recent spate of blogs and newspaper articles has raised questions in Indiana about the role and relationship of pastors with Indiana laws around marriage and religious rites with and for same-gender couples. Three examples follow, the first from a blog, the second from the Indianapolis Star newspaper, the third from the Fort Wayne Journal Gazette:

After consultation with Indiana-Kentucky Synod Attorney, Josh Tatum, I offer here my perspectives and counsel for the rostered leaders, especially clergy, and the mission centers of this synod. (Josh has also written a very helpful post on his personal blog, Law meets Gospel:

"Solemnizing" isn't defined in the statute (Ind. Code § 31-11-11-5), but it appears to boil down to doing the required paperwork for a marriage to be recognized by the state. The point where clergy serve on behalf of the state is in signing the state-issued marriage license. This is one place that it appears the americablogger and the author of the Journal Gazette incorrectly interpret the law. For example, the blogger says, "Note how solemnization is mentioned as something other than filing the marriage license." The Journal Gazette claims, “Yes, it’s still a crime for clergy to have a religious marriage ceremony for those who cannot marry legally, or civilly, such as same-sex couples…”
The solemnizing, from the state’s perspective, is not the religious ceremony or rite. It is filling out and signing the license by a person so authorized by the state, essentially as an agent of the state for documentation of a civil marriage. Everything else in the wedding rite presided over by a pastor is done on behalf of the church, not the state, and the church gets to define that. In fact, a classical Lutheran understanding of marriage would suggest that the marriage or union is done by the couple by way of their vows to one another, not by the pastor; clergy are simply witnesses to that commitment and representatives of the support and accountability of the people of God. Again, pastors act as agents of the state only in the signing and filing of the marriage license. From a First Amendment standpoint, any church has the freedom to define its own rites and call them what it will…and conduct the rites for and with whomever it will.
So the bottom line is this: As long as a pastor doesn’t try to do the state’s paperwork for a couple not eligible for an Indiana marriage license, including a same-sex couple (which the couple is unlikely to have, given the law), the pastor is not breaking the law.
As for the age of the law itself, it was passed in 1997 and likely became effective that same year. Apparently at the time, contrary to what some have suggested, the movement was bipartisan and Governor Bayh was likely the one who decided the legislation’s ultimate fate. Note that this law applies broadly to any type of prohibited marriage; in other words, nothing in this particular statute addresses same-gender relationships. Stipulations about who may marry in the state of Indiana are found in the state’s previously adopted code entitled, “Who May Marry” [see especially Ind. Code § 31-11-1-1(a)].
One thing that did change in this current legislative session was the set of classifications and penalties for various crimes. In this case, the change is to a Class B misdemeanor for a person who solemnizes, and a Level 6 felony for the falsifying applicant. Class B misdemeanors are punishable by up to one hundred eighty days and a fine up to $1,000 (Ind. Code § 35-50-3-3).
Those who are interested in a legal perspective on these laws in response to the recent public conversations will find a helpful one on The Indiana Law Blog: This does not address specific clergy concerns, of course. However, the author does provide helpful perspective on the laws and some background on Defense of Marriage Acts that place Indiana in the group of states that define marriage around one man and one woman.

Faithful members of this church disagree with one another about the appropriateness of state-recognized marriage for same-gender couples as well as the church’s perspective on publicly accountable, life-long, same-gender monogamous relationships. As we reach across our differences, confident and calm in the promised support and guidance of God’s Spirit, to live and work together in Christ in addressing important public issues like this one, we can do so knowing that the current uproar about clergy being arrested for presiding at religious rites for same-gender couples is unfounded. Our shared commitment to finding ways to allow congregations that choose to do so to recognize, support, and hold publicly accountable couples who wish to have lifelong, monogamous, same-gender relationships is, likewise, not impacted by this statute.

+ Bishop Bill Gafkjen
Indiana-Kentucky Synod, ELCA
July 2013
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