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!