Ohio is now operating under a "justice" system in which unmarried victims of domestic violence have fewer rights and protections than married victims. "Separate but equal" was a disgrace when used to justify separate schools based on race and remains a disgrace when used to deprive unmarried women of safety from assaulting and murdering boyfriends and ex-husbands.
It's more than a disgrace. A woman's right to be protected by our courts, police and prosecutors is an issue of human rights. Our friend Zwoof's beautiful daughter was murdered by her former boyfriend after he was released on his own recognizance despite having a prior record of vicious assaults against Alicia. In the early morning hours of March 29th, he snuck into her home to kill her while her children slept nearby. Not only did he kill her, but her friend as well.
This happened because some right wingers decided to tear apart the Ohio domestic violence system in order to achieve their own partisan, political agenda.
Ohio Domestic Violence Law.
The Ohio DOMA was enacted in February 2004. The Ohio DOMA law provides that same-sex marriages have no legal force or effect. It also voids "any public act, record or judicial proceeding" which recognizes or extends "specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes."
The specific statutory benefits clause could have rendered void the extension of domestic violence protections to unmarried women:
In Ohio only married individuals generally have a right to use the Domestic Relations Court as a forum to resolve their differences. The one exception to this general rule was provided by the Domestic Violence Act, which recognized the importance of providing the victims of domestic violence with a convenient and efficient forum for protection, separate from the criminal justice system, even if said victim is not legally married to the perpetrator. The Domestic Violence Act provides a quick and efficient forum for victims of Domestic Violence to use in order to obtain a Civil Protection Order. Further, and most importantly, the Domestic Violence Act requires that Civil Protection orders issued by the Domestic Relations Court be recognized and enforced by local police departments, unlike other Civil orders.
The Ohio legislature wisely provided exceptions to the statutory benefits mandate so that it could not be used to create a two-tiered system for domestic violence based on marital status. DOMA expressly stated that the statutory benefits mandate shall not:
(a) Prohibit the extension of specific benefits otherwise enjoyed by all persons, married or unmarried, to nonmarital relationships between persons of the same sex or different sexes, including the extension of benefits conferred by any statute that is not expressly limited to married persons, which includes but is not limited to benefits available under Chapter 4117. of the Revised Code;
(b) Affect the validity of private agreements that are otherwise valid under the laws of this state.
Therefore, if specific benefits – like access to the Domestic Relations Court – were available to married and unmarried persons, as was the case in Ohio prior to DOMA, then DOMA could not stop or void these benefits to unmarried persons. The legislature made it clear that DOMA was intended to limit what constitutes a marriage and ban substitutes for marriage, such as civil unions.
However, this statutory DOMA was not good enough for right wingers who wanted more than defining what constitutes a marriage. Desperate to ensure that Bush remained in office, Karl Rove embarked on a national campaign to turn out conservative voters by pushing anti-gay marriage measures, particularly in the important swing-state of Ohio. Ohio was hit heavy prior to the 2004 election to pass a DOMA constitutional amendment. The "Christian Coalition distributed more than 5 million voter guides in at least 5,000 churches in two weekends before the election opposing gay marriage and activist judges."
Now, Ohio has a Marriage Amendment as part of its constitution:
Only a union between one man and one woman may be a
marriage valid in or recognized by this state and its political subdivisions.
This state and its political subdivisions shall not create or recognize a legal
status for relationships of unmarried individuals that intends to approximate
the design, qualities, significance or effect of marriage.
The first sentence simply reiterates the previously enacted statutory DOMA probably because the Christian Coalition (pdf file) needed to spin the amendment as a marriage amendment. Ohio voter guides (pdf file) stressed that the marriage initiative would define marriage to restrict "governmental bodies in Ohio from using your tax dollars to give official status, recognition and benefits to homosexual and other deviant relationships that seek to imitate marriage."
The problem was that voters did not receive truthful information about the impacts of the 2nd "legal status" clause before they voted. While it was too late, when voters started to understand the impact of the marriage amendment on domestic violence laws, then "support for the amendment dropped substantially."
The Quandary of the 2nd Clause on "Legal Status."
State v. Carswell (pdf file) (2005) may be the case to resolve whether unmarried victims of domestic violence can obtain protection and justice in Ohio as the case is now before the state Supreme Court.
In this case, as in many lawsuits in Ohio, the defendant argued that the Ohio domestic violence laws created a "legal status" for unmarried, cohabiting individuals that approximated marriage contrary to the Marriage Amendment. The lower court agreed, ruling that the domestic violence statute was unconstitutional as applied to the defendant Michael Carswell, who was indicted for domestic violence against Hannon Hitchcock, a household member who was not married to Carswell. The lower court then amended the indictment to allege assault.
Under Ohio domestic violence law, no person may cause or attempt physical harm to a "family or household member," which is defined to include certain persons who are residing or have resided with the offender, including "a person living as a spouse." The law defines a "person living as a spouse" as a person who is living or has lived with the offender in a common law marital relationship or otherwise cohabiting with the offender.
The approach of several courts in Ohio has been to look at the list of covered household members and then jump to the conclusion that if the term sounded like a marriage, it must be in violation of the marriage amendment. However, there are at least three problems with that type of legal analysis.
One, statutes are accorded such a "strong presumption of constitutionality" that when constitutional challenges are raised, the courts will liberally construe a statute to save it from constitutional infirmities." Two, the language of the marriage amendment makes clear that its enactment was not an express attempt to overrule the domestic violence law as it applied to unmarried, cohabiting individuals. Therefore, in order for the marriage amendment to repeal the domestic violence law, it must constitute a repeal by implication, which requires that the repugnancy be necessary and obvious. And, three, the meaning of "legal status" is determined by analysis, not gut reactions.
Given that "legal status" was not defined by the marriage amendment or Ohio laws, the Court of Appeal relied upon Webster's dictionary for a definition of status:
"The condition (as arising out of age, sex, mental incapacity, crime, alienage, or public station) of a person that determines the nature of his legal personality, his legal capacities, and the nature of the legal relations to the state or to other persons into which he may enter."
Using this definition, the Court of Appeal held that the domestic violence law did not create or recognize a legal status for the relationships of unmarried individuals:
The statute does not determine "the nature of the legal relations to the state or to other persons" that a cohabitant may enter, nor does it determine a cohabitant's legal capacities. The statute does not confer or take away from a cohabitant a set of legal rights. The statute's scope is very narrow; it defines the conduct that constitutes the crime of domestic violence, and sets forth categories of individuals considered potential victims under the statute. The statute classifies a cohabitant as one of many potential victims. We do not find that such classification creates a "legal status" for relationships between unmarried, cohabiting individuals.
The court also determined that even if the domestic violence law created or recognized a legal status for unmarried individuals, the domestic violence law would still be constitutional because it does not intend to approximate marriage.
The language of the statute expresses no such intent. The statute does not permit unmarried individuals to enter into a legally binding, marriage-like relationship with each other. It does not give an unmarried individual the right to inherit from an intestate cohabitant, the right to make medical decisions on a cohabitant's behalf, the right to file a joint tax return with a cohabitant, or any other of the host of rights associated with marriage.
[The domestic violence law] does align unmarried, cohabiting persons with married persons in the sense that individuals in both groups can be classified as offenders or victims under the statute. However, such alignment does not amount to the creation or recognition of a legal status "that intends to approximate the design, qualities, significance, or effect of marriage." The intent of the domestic violence statute is clear on its face: to protect all members of a household from domestic violence by punishing those who commit domestic violence. Consistent with that purpose, the statute protects other household members beyond spouses and cohabitants. The definition of "family or household members" under the statute includes parents, grandparents, children, aunts, uncles, cousins, and other relatives of the offender, the offender's spouse, or a person living as the offender's spouse. In enacting R.C. 2919.25, the General Assembly clearly
intended to address household violence in all its forms, and did not intend to create in
unmarried, cohabiting individuals a legal status "approximating the design, qualities,
significance, or effect of marriage."
The Court of Appeal correctly concluded essentially that a "person living as a spouse" was merely a description of those persons entitled to protection from criminal activity and did not create a "legal status" for unmarried persons that approximated marriage.
Citizens for Community Values (CCV) disagreed with this approach. CCV filed an amicus brief (pdf file) in the Ohio Supreme Court on behalf of an alleged domestic abuser to ensure that domestic violence law did not protect unmarried or divorced women. CCV admits in its brief that it was a "driving force" to pass the marriage amendment and collected signatures to place the amendment on the ballot.
The CCV argued that the domestic violence statute provided protection to "persons living as a spouse" and thus grants a legal status to a relationship that is prohibited by the Constitution. The CCV maintained that whether the statute violated the constitution depends upon whether the state has created or recognized a legal status and whether the legal status approximates marriage. CCV argued that benefits or obligations of the status were not relevant.
However, the approach by the Ohio Court of Appeal is similar to one used by the US Supreme Court in a similar context which indicated it's "definition" of "legal status." That is, it looked at the descriptions of categories of persons covered by a law and the impact of those categories in terms of benefits or disadvantages.
In Romer v. Evans (1996), the US Supreme Court addressed state constitutional amendments adopted after voter initiatives that were directed at homosexuals. Colorado cities had passed ordinances that banned discrimination in many transactions and activities, such as housing, employment, education, public accommodations, health services and welfare services. The ordinances provided protection to homosexuals from discrimination. The voters then passed Amendment 2 which repealed these ordinances to the extent that the ordinance prohibited discrimination on the grounds of homosexuality and it "prohibited all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians."
While the state argued that the amendment simply placed gays and lesbians in the "same position as all other persons" and was designed to simply "deny homosexuals special rights," the court brushed that argument aside, noting that the amendment changed the "legal status" of homosexuals by looking at what would be the legal benefits and detriments:
Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances that the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.
Amendment 2 bars homosexuals from securing protection against the injuries that these public accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment.
Laws can not single out a certain class of citizens for disfavored legal status or to render it more difficult for that class to seek aid from the government:
Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of 'equal protection of the laws is a pledge of the protection of equal laws.' "
The "Legal Status" Clause of the Marriage Amendment Created A Separate But Unequal Domestic Violence Law.
Limiting the domestic violence law to married persons means that unmarried persons will be denied the civil and criminal protections of domestic violence law. This is particularly egregious because "all the murders that have occurred in Wood County in the last five years have been the result of domestic violence." However, since the Marriage Amendment was adopted, "prosecutors in several Ohio counties have refused to lay charges in cases of domestic violence involving non married opposite-sex couples."
The consequences are that abusers of unmarried victims can not be charged with domestic violence, but only regular assault charges. For repeat offenders, the domestic violence system provides escalating charges with each new offense so that the first offense is a misdemeanor but repeat offenders face increasingly severe degrees of charges, including felony charges. For repeat offenders of assault charges, there are no escalating charges; instead, each charge is treated as a first-time misdemeanor.
The right wingers claim that unmarried persons are still provided a separate system of legal protections by charging abusers under assault and battery laws. But, these laws do not provide for escalating penalties against repeat abusers or domestic restraining orders. And, the threshold for when police can arrest the abuser is different: "police are supposed to arrest people when they are presumed to have committed domestic abuse; the threshold for arrest of assault suspects is higher."
In addition, this new interpretation of domestic violence law may mean the loss of grant funded programs designed to help victims and offenders because the funding is based on domestic violence cases, not assault cases. And, it may mean fewer abusers get court-ordered counseling that often occurs with domestic violence charges.
The Marriage Amendment Violates The Federal Constitutional Equal Protection Clause.
Dozens of lawsuits have been filed by men seeking to have domestic violence charges against them dismissed, claiming that the domestic violence laws violate the constitutional Marriage Amendment when applied to unmarried victims. In some cases, domestic violence charges have been dismissed.
If the State Supreme Court finds that domestic violence law only protects married couples, then the marriage amendment may be challenged on federal constitutional grounds.
Federal constitutional law does not permit states to draw distinctions in criminal law between married and unmarried persons.
In Eisenstadt v. Baird (1972), the US Supreme Court reversed a felony conviction based on a state statute in which marital status determined whether a crime had been committed.
The case involved a state law that made it a felony for anyone to give contraceptives to unmarried persons because the law mandated that only doctors may prescribe contraceptives to married persons. Thus, the same conduct was criminalized when involving unmarried persons but not when it involved married persons.
The US Supreme Court held that providing dissimilar treatment for married and unmarried persons who are similarly situated violated the Equal Protection Clause of the 14th Amendment:
On the other hand, if Griswold is no bar to a prohibition on the distribution of contraceptives, the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons. In each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious....
We hold that by providing dissimilar treatment for married and unmarried persons who are similarly situated, Massachusetts General Laws Ann., c. 272, 21 and 21A, violate the Equal Protection Clause."
Right wingers say a separate but equal system of domestic violence is available in Ohio for unmarried persons, who may file assault and battery charges. Courts have correctly tossed out such lame arguments.
In Williams v. State (1986), an Alabama court held that a state statute that criminalized sodomy for unmarried persons and excluded married persons from the felony law due to the "marital exemption" was unconstitutional. The "marital exemption" was the historical right of the man to rape, sodomize and commit other sexual acts against his wife because the wife's consent was implied by the marriage certificate.
The fact that there are alternative remedies available for victims not protected by a criminal statute does not constitute a rational justification for the state to distinguish based upon marital status:
"However, the very existence of our forcible sodomy statute is recognition of the fact that the harm caused by a forcible sodomy is different in nature from the harm caused by an ordinary assault. In a situation where a person forcibly sodomizes his or her spouse without the use of a deadly weapon or a dangerous instrument, and without causing serious physical injury to the victim, he or she could only be found guilty of a class A misdemeanor if prosecuted under the assault statutes. If that person were prosecuted for forcible sodomy, he or she could be convicted of a class A felony. This vast differentiation in punishment clearly disproves this alternative remedy theory."
One Ohio court agrees. In Phelps v. Johnson (2005), Tori D. Phelps asked a domestic relations court for a protection order against her boyfriend, Brian K. Johnson, who argued that the constitution now banned unmarried women from obtaining a protection order from this court. The judge ruled that the 2nd clause of the marriage amendment violated the Equal Protection clause of the federal constitution precisely because the separate but equal domestic victim systems were not equal:
Due to the effects of the second sentence of Article XV, Sec. 11 of the Ohio Constitution, an abuser who cohabits with a victim without marrying said victim couldn’t, as quickly and effectively, be prevented from perpetrating acts of domestic violence because the victim would not have access to the Domestic Relations Court as a married victim would.
The Rove Strategy Knocks Out Argument that New Domestic Violence System Is Rational Under Equal Protection Clause.
The US Supreme Court stated in Eisenstadt v. Baird the standard to test whether classifications in state laws will be permitted under the Equal Protection Clause:
"In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'"
The question then is whether there is a reasonable ground that rationally explains the different treatment accorded married and unmarried persons under the Ohio domestic violence laws.
Why is Rove's strategy relevant? States may enact laws and constitutional provisions that discriminate between different classes of people – such as different treatment for married versus unmarried victims of domestic violence. However, such distinctions pass constitutional muster only when the state has a legitimate rational basis for the differential treatment, and winning elections is not an acceptable reason:
A legal analysis of the purpose behind Article XV, Section 11 (Issue I) of the Ohio Constitution is probably the most damning aspect of the Ohio Constitutional provision (Issue 1) as it pertains to the Equal Protections clause embodied in the Fourteenth Amendment to the United States Constitution. It is nearly impossible to divine the purpose for discrimination against unmarried persons, although it is generally accepted that the architects of such referendum ballot issues (across the country) were political operatives like Karl Rove, who sought to guarantee that a certain demographic of voters would turn out in large numbers at the polls to vote in the presidential election. Likewise, the other end of the political spectrum promoted referendum issues that sought to raise the minimum wage. The difference between these political efforts was that the Rove side of it served to seriously confuse and complicate the law as it pertains to protecting the victims of domestic violence. This Court finds that the purpose behind Article XV, Section 11 of the Ohio constitution does not pass the "rational basis test". Therefore, the second sentence of Article XV, Section 11 of the Ohio Constitution (Issue 1) is in violation of the Fourteenth Amendment to the U.S. Constitution (Equal Protections Clause) as it pertains to the Domestic Violence Act in Ohio law.
Domestic Violence Is Not The Only Context Affected By Marriage Amendment.
If the court accepts the right-winger theory that protecting household members from domestic violence creates a legal status similar to marriage, then the constitutional amendment will be applied to other contexts beyond domestic violence. For example, the "Carswell ruling might be applied in a lawsuit against Miami University over giving domestic-partner benefits to university employees." The result is that this marriage amendment has created a "Pandora's box of potential litigation over the legal status of all sorts of relationships."
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