We previously reported the fact that the Ohio organization most responsible for passage of that state’s version of the Marshall/Newman amendment, Citizens for Community Values, had filed an amicus brief in a domestic violence case. The brief argues that unmarried perpetrators can’t be prosecuted under Ohio’s domestic violence statute because to do so would recognize “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”
During the campaign for the amendment, CCV had characterized concerns about its potential impact on unmarried victims of domestic violence as a “fear tactic” and “absurd.”
From the brief:
CCV’s strong interest in this case is to ensure that the plain and unambiguous text of the Marriage Amendment is properly applied by this Court in the context of this case, and to prevent unwarrented judicial construction of the amendment which might diminish its operational effect. CCV believes a case such as this could lead to an inadvertent narrowing of the scope of the amendment by the Court, as the motivation is great to preserve an understandably popular statute in its present form.
That statute is Ohio’s domestic violence law. The defendent in this case, being prosecuted for assaulting his girlfriend, claims that the use of the domestic violence statute against him is unconstitutional because they are not married.
The domestic violence statute’s inclusion (in the list of relationships containing potential victims of domestic violence) of the relationship of the alleged offender and a “person living as a spouse” is certainly a relationship that intends to approximate (one or more of) the “design, qualities, significance or effect of marriage.” As noted by the court below, the Marriage Amendment prohibits the State from creating or recognizing a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage. Thus, whether the challenged provision of the domestic violence statute violates the Ohio Constitution hinges on whether the State has created or recognized such a “legal status” for that relationship, and whether that legal status is intended to approximate marriage. CCV proposes that such a prohibited status indeed has been accomplished in the domestic violence statute.
Contrary to claims by proponents of the Marshall/Newman amendment that the Third Appellate District ruling (holding that the application of domestic violence law to unmarried couples does violate the constitution) “misinterprets” the intent of the amendment, CCV leaves no doubt about what the amendment is intended to prohibit:
In State v. McKinley, 2006-Ohio-2507, the Third Appellate District properly interpreted the Marriage Amendment on this point, stating the “relationship must intend to approximate marriage, not the statute itself.” (Emphasis in original.) For the status is inextricably bound up in the purpose of the relationship referenced in the statute.
This is very revealing. Attorney General McDonnell and others have been arguing all along that all the Marshall/Newman amendment will do is to prohibit the government from creating a “legal status” such as civil unions or domestic partnerships, or from recognizing such a status granted by other states. They insist that it will not prohibit the enforcement of specific contractual rights or other legal protections enjoyed by two people, regardless of “the relationship.”
Now that the Ohio amendment is in effect, CCV is giving us a preview of coming attractions. They are essentially arguing that it is the intent of the two people who are cohabiting as domestic partners that determines whether or not any rights claimed by them through existing law can be recognized by the state, not the intent of the existing law itself.
It remains to be seen how the court will rule. The point here is that this argument is being made by the very same group that spearheaded the campaign for the amendment and dismissed such predictions as “absurd.”
But wait – there’s more:
The focus of the second sentence of the Marriage Amendment is not on the benefits or obligations assigned to those in the relationship which is given a legal status – it is on the status itself. These two matters (benefits and status) must be assiduously distinguished for the amendment to be properly understood.
The Marriage Amendment does not proscribe the extension of benefits to persons in marriage-mimicking relationships. Rather, it proscribes the very legal recognition of the relationships in the first place, for any purpose.
Interesting. In the Marshall/Newman amendment there is the addition of a third sentence, which reads:
Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
What we’ve heard from amendment proponents is that this seemingly redundant language merely restates the content of the second sentence for greater clarity. (Move along, nothing to see here, thank you, move along.)
What is the real purpose of this additional sentence, if not to eliminate the possibility of benefits being granted to unmarried couples on some basis other than a legal status that is already established in law? This language would open the door to an argument that the granting of a benefit itself constitutes recognizing a “legal status.” It is intended to close the loophole identified in the Ohio amendment: “The Marriage Amendment does not proscribe the extension of benefits to persons in marriage-mimicking relationships.”
CCV is proposing that changes to the language of Ohio’s domestic violence statute will solve the problem presented by cases such as this. Their solution is to change the categories of persons eligible for protection under the domestic violence statute to include “household member,” the argument being that if household members in general are encompassed, the state is not extending benefits solely on the basis of recognizing a “marriage-mimicking relationship.”
This is the same argument that Marshall/Newman proponents make when they claim that the language of the Virginia domestic violence statute is different from Ohio’s. Virginia’s domestic violence law does indeed refer to “family and household members” rather than “person living as a spouse,” so it would initially seem that a court could not interpret it as recognizing “a legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.” However, when former Attorney General Gilmore was asked to issue an official opinion with regard to whether the statute applied to same sex couples, he stated that it only applied to couples who were within the legal definition of “cohabiting,” which means…“living as man and wife.” This interpretation has been upheld, including by the Virginia Supreme Court, since 1994.
Unlike the amendment itself, this is “plain language.” Since the Marshall/Newman amendment would prohibit the recognition of a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage, AND would prohibit the recognition of another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage, these unmarried “family and household members” who are either same sex OR “living as man and wife” would clearly be excluded from Virginia’s domestic violence statute. To do otherwise would require overturning this precedent.
We still haven’t managed to locate any “activist judges” in Virginia, so this seems unlikely.
All together now: Vote NO, Virginia!
Great, great post!
I am afraid I don’t get it, so let me see whether I can work it out step-by-step.
1) Same-sex couple living in the same house.
2) Person A beats up person B.
3) Person B calls police and charges person A with assault-and-battery.
4) Person A is arrested.
What’s the problem?
Thanks, Vivian!
Jack: That is a problem, because intimate partner violence is not the same as simple assault. That’s why we have domestic violence statutes in the first place. But what you describe isn’t the problem I’m talking about in this post. The legal implications discussed here are the impact on ALL unmarried couples, the vast majority of whom are heterosexual.
The domestic violence statutes only make sense (to me) for married couples. If one is not married, why would one stay with an abusive partner?
David,
If someone in a marriage simply packs up an leaves they may be subject in some states to either civil of legal measures. This is why the laws governing violence in the home will carry a stiffer penalty. If there is no marriage contract the individual is free to get up and go at a moments notice.
As for lying, given what what is in the post, it certainly looks that way.
Rob
Jack,
That is a real interesting comment…to simply pack up and leave. I guess you would also have to ask why wouldn’t a wife with an abusive husband also “get out” since divorce is fairly easy to accomplish. Your comment simply implies that you believe marriage is simple pragmatism and has nothing to do with love and committment. As in many civil marriages, same-sex couples are not only tied together through committment and love for one another, but also joint ownership of property, financial intermingling, children, and other factors inherent within a realtionship between two people of this importance. One could also argue that the degree of love and committment that same-sex couples have for one another could possibly be stronger than our legal civil married opposite sex bretheren, since there is really nothing of an external influence to keep us together other than that. That being said, I would say that domestic violence within a same-sex relationship would, in essence become more damaging since the bonds of love and committment may be stronger.
Jack and Rob,
You may want to contact your local domestic violence agency (here in Loudoun it’s LAWS/Loudoun Citizens for Social Justice, http://www.lcsj.org) for information on why we treat intimate partner violence differently in the criminal justice system. These agencies usually have a FAQ page or similar resource. The idea that an abused wife or girlfriend can “just leave” is one of the most common misconceptions that people have.
The most dangerous time for someone in an abusive relationship is when they actually do attempt to leave. That’s when things like protective orders are needed the most, and protective orders are only available in Virginia under the domestic violence law. Having a partner charged with simple assault carries none of these protections, and in many cases simply enrages the (usually male) abuser and leaves the (usually female) victim in extreme danger. Remember the woman who was set on fire by her ex-boyfriend? She was denied a protective order, and he was therefore free to stalk her and assault her at her workplace.
Having no option other than a charge of simple assault would be the scenario if Marshall/Newman passes, given that an offical AG opinion and the legal precedent in Virginia has defined “cohabitate” to mean a heterosexual couple “living as man and wife.” There are tens of thousands of such cases every year in Virginia.
Russell said: “I guess you would also have to ask why wouldn’t a wife with an abusive husband also ‘get out’ since divorce is fairly easy to accomplish. Your comment simply implies that you believe marriage is simple pragmatism and has nothing to do with love and committment.”
I said nothing of the sort. I thought I was clear when I said that the domestic abuse statutes made sense for married couples. I said, “IF ONE IS NOT MARRIED, why would one stay with an abusive partner?” Divorce is a very bad option, and one I never recommend. It is, in my mind, until death. Some people do make bad choices when they marry, but as Pink Floyd said, “It’s only a lifetime.”
Russell again: “As in many civil marriages, same-sex couples are not only tied together through committment and love for one another, but also joint ownership of property, financial intermingling, children, and other factors inherent within a realtionship between two people of this importance.”
I do not see your point. First, love and committment are irrelevant to the discussion, because if there were MUTUAL love and committment, there would be no abuse. Second, joint ownership of property. If one is abused, sue for the other half of the property. Meanwhile, rent an apartment, and let the abuser try to cover the mortgage alone. If the mortgage is defaulted, go to court to have it expunged from your credit record.
A child of a same-sex couple can only belong to one of the two.
And finally from Russell: “One could also argue that the degree of love and committment that same-sex couples have for one another could possibly be stronger than our legal civil married opposite sex bretheren, since there is really nothing of an external influence to keep us together other than that. That being said, I would say that domestic violence within a same-sex relationship would, in essence become more damaging since the bonds of love and committment may be stronger.”
I repeat, there is no mutual love in an abusive relationship. I can only speak for MY marriage, but my committment was make before God and lasts until death. That is NOT an external influence — God is central to our marriage. The reason we have so much divorce now is because God is no longer the center of marriages; one’s own desires are. That is also why there is abuse.
David, I couldn’t find a FAQ page on their site. I’ve already discussed the wife part, and a girlfriend should not be living with her boyfriend.
> The most dangerous time for someone in an abusive relationship is when
> they actually do attempt to leave. That’s when things like protective
> orders are needed the most, and protective orders are only available
> in Virginia under the domestic violence law.
I find that last part hard to believe. Do you have supporting evidence for that. If it is true, it is a serious hole in our laws that needs to be addressed.
> Having a partner charged with simple assault carries none of these protections,
> and in many cases simply enrages the (usually male) abuser and leaves the
> (usually female) victim in extreme danger. Remember the woman who was set on
> fire by her ex-boyfriend? She was denied a protective order, and he was therefore
> free to stalk her and assault her at her workplace.
And that, my friend, is why we do not have a waiting period to buy handguns. A young woman a few years ago, down around Quantico, I think, had trouble with her boyfriend, and was afraid of him. So she bought a handgun. That very night, he broke in and came at her with a knife. She shot and killed him. Had the Brady waiting period been in effect, she would have been dead.
“God made man and woman; Colonel Colt made them equal.”
> Having no option other than a charge of simple assault would be the scenario
> if Marshall/Newman passes, given that an offical AG opinion and the legal
> precedent in Virginia has defined “cohabitate” to mean a heterosexual couple
> “living as man and wife.” There are tens of thousands of such cases every
> year in Virginia.
Yet there are still VAST differences between a married couple and an unmarried one.
First of all, she should not be living with her boyfriend before they are married. That’s why it’s called, “Living in Sin.” Call it old-fashioned if you like, but you yourself are pointing out why it is a bad idea, and God is certainly not the center of such a relationship. It has also been shown (and I’ll dig up the study if you like) that cohabitating heterosexual couples are more likely to break up within ten years that married couples, even if those cohabitating couples get married within that ten year period. It’s even worse for same-sex couples, which would not be the cae, Russell, if they were more committed, in general, than married couples.
It is not the governments’ place to protect us from our own stupidity.
Belong? Biologically related? There are instances where traditionally married couples adopt or use sperm/egg donors.
Thanks Jack, the wording of the amendment is becoming clear. It insures that people who are “Living in Sin” are treated punitively. By that logic, the constitution does require major revision. Do you think the voters understand your position?
I forgot one other thing. “Protective Orders” don’t protect anyone — no-one intent on committing a violent felony is going to be deterred by a court order.
Jonathan, how does the Marriage Amendment treat unmarried couples punitively? By not protecting them from their own mistakes? I repeat, that is not the governments’ job.
Unmarried heterosexual couples may get married. If they chose NOT to be married, why should they be treated as though they are?
I said: “A child of a same-sex couple can only belong to one of the two.”
Jonathan asked: “Belong? Biologically related? There are instances where traditionally married couples adopt or use sperm/egg donors.”
Is my statement incorrect? (I am going by my understanding of VA law here.)
I was not speaking of married couples. But in the cases you cite, I believe that, by VA law, the child belongs to both parents.
Jack,
Thanks for explaining why you don’t think unmarried people should be eligible for the provisions of our domestic violence statute. I’m thinking that the pro-amendment folks don’t appreciate it much, though.
“Protective Orders” don’t protect anyone
Do me a favor: Ask a few of Virginia’s large employers whether they would rather have
1) an employee who can obtain a protective order that allows her enraged ex-boyfriend to be arrested if he so much as enters the parking lot of her workplace, or
2) an employee with a hastily obtained firearm and an enraged ex-boyfriend who shows up at her workplace where they can engage in a nice shootout.
Then let us know what they said. Yes, people can and do violate protective orders, but that is not a very compelling argument for not having them.
As for your view that she “shouldn’t” be living with (having sex with?) her boyfriend, I’m sure you realize that not everyone shares your religious beliefs regarding cohabitation. Please remember that this is America. We do not have a Ministry for the Prevention of Vice and the Promotion of Virtue.
I have not said there should not be protective orders. Please read again what I said: “If it is true [that one cannot obtain a protective order against someone who is not one’s spouse], it is a serious hole in our laws that needs to be addressed.”
> As for your view that she “shouldn’t” be living with (having sex with?)
> her boyfriend, I’m sure you realize that not everyone shares your religious
> beliefs regarding cohabitation.
Agree with me on that point or not, it is still not the governments’ business to protect her from the consequences of her poor choices. The governments’ job is to protect us from OTHERS’ bad choices, not our own. If she wants the protections of marriage, she should get married. If he won’t marry her, she’s obviously shacking up with the wrong man.
“shacking up”? hmmm. Where have I heard that term before?
I wonder if you realize what you just recommended: That a woman who finds herself in an abusive relationship should resolve the problem by marrying her abuser.
That is quite remarkable.
I said nothing of the sort and you know it. An abused person should leave the abusive person and file appropriate charges. We have domestic violence laws because married women often do not have the option of leaving.
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