Ohio Hints at Legal Tangle That Could Befall Va.
October 26, 2006
By Chris Jenkins
At a press conference yesterday, professionals who work with victims of domestic violence in Virginia cited lessons from Ohio in warning about the broad language of Ballot Question #1. Because of constitutional challenges brought by defense attorneys, there are now dozens of Ohio domestic violence cases in legal limbo because the people involved are unmarried. The number of victims affected in the ten counties where their protection under the law has been suspended is unknown.
“We do not believe that there is a reason to take any risk that unmarried domestic violence victims will be denied these essential protections,” Stacy Ruble, a coordinator for the Virginia Sexual and Domestic Violence Action Alliance, said at a news conference in Richmond. “My concern is the victims that are going to get caught during any court challenges, and frankly I’m not willing to take that risk.”
As for Bob McDonnell’s apologia, “Virginia’s existing law does not confer a legal right unique to marriage . . . that might be invalidated by the marriage amendment,” it’s at best dubious. What the amendment prohibits is recognition of a legal status that “intends to approximate” one or more aspects of marriage. Nowhere does its language require that those aspects be “unique to marriage.” McDonnell has fabricated this standard out of thin air and a desperate desire to advocate for the amendment he co-patroned.
As discussed at Vivian Paige and Blogging the Amendment, defense attorneys will have an ethical obligation to use constitutional challenge in defending their unmarried clients regardless of what Bob McDonnell thinks. It’s not a choice, it’s their job.
“It’s going to be a problem [for Virginia] because someone is going to raise it and someone will look at what Ohio has done and defense lawyers across the country will have no choice but to raise that challenge,” said Alexandria Ruden, a staff attorney for the Legal Aid Society of Cleveland. She said such laws have been suspended in 10 counties in Ohio as the legal wrangling continues.
This means that, while the lawyers sort it out, victims will be without the protections they are supposed to have and that are only available to them through the family and domestic courts. For all I know, Bob McDonnell is right. Maybe every Virginia judge who hears such a challenge will be an “activist judge,” and will not interpret the amendment as written but rather as Mr. McDonnell wishes that it had been written, but that seems highly unlikely. Maybe the outcome will eventually be as he claims, but it will be many years before we know.
In the meantime, victims of domestic violence will be in legal limbo, and someone may die because of it. Unlike voters in Ohio, we do not have the excuse that we didn’t know.