Thursday, March 24, 2005


Issue 1 chickens come home to roost: Domestic violence law only applies to married couples

So now we are in some "unusual and frightening places."

Opponents of last November's Issue 1, aka the Gay Marriage amendment, warned that it wasn't about homosexual marriage, unions or whatever. They warned that it was about having government decided who you could and could enter into a relationship with, and what rights would be conferred on that relationship.

In otherwords, they were saying that the radical right's opposition went beyond gay sex and that there was a broader agenda to restate the rules for all relationships including heterosexual ones. Thus, they predicted that Issue 1 had many hidden bombs within it that would go off over time.
Well, it didn't take long for the first bomb to go off. From the Plain Dealer:
Ohio voters who approved a constitutional amendment last fall that denied legal recognition of unmarried and gay couples probably didn't envision the measure being successfully used as a defense in domestic violence cases.

But that became a reality Wednesday when Cuyahoga County Common Pleas Judge Stuart Friedman ruled that the amendment, approved by voters as Issue 1, made part of the state's domestic violence law unconstitutional.

Friedman said that because Ohio's domestic violence law recognizes the relationship between an unmarried offender and victim as one "approximating the significance or effect of marriage," it represents a direct conflict with the amendment's prohibition against such recognition and is thus unenforceable.

In the case involving Frederick Burk of Cleveland, who was arrested in February on a charge of domestic violence against a woman, Friedman reduced that charge (a fourth-degree felony with a possible prison term of six to 12 months) to simple assault (a first-degree misdemeanor with a maximum six-month jail term). One of Burk's attorneys, Dave Magee of the public defender's office, said Friedman's ruling may be the first in Ohio supporting the contention that the domestic violence law is unconstitutional.

[. . . ]

Lewis Katz, a Case Western Reserve University law professor, said the legal battle could eventually reach the Ohio Supreme Court. He said that court may try to save the statute, and an effort will made by the state legislature to revise the law to make it constitutional.

Until then, he expects to see more lawyers raise the constitutional issue in domestic violence cases, and "judges bending over backwards to save the domestic violence statute from such attacks.

"My own guess is that Judge Friedman is correct because the language of Issue 1 is so clear, it's hard to get around that," he added.

[. . . ]

Cathleen Alexander, executive director of the Domestic Violence Center in Cleveland, said Friedman's decision will bring an issue that needs to be resolved to the forefront. But she also noted "the troubling part, until the state figures out how to address these unintended consequences, is that a victim can't avail themselves of the full protection of the domestic violence law."

That protection could include the automatic escalation of charges for repeat offenses and obtaining protection orders for victims, Alexander said.

Friedman said he was "greatly concerned" as to how his decision might affect judicial decisions setting bail and motions for temporary restraining orders in certain domestic violence cases. But before announcing his decision, he emphasized that anyone who assumed the ruling was based on any kind of personal, legal or social agenda would be wrong. And following the law, Friedman said, can sometimes mean taking a path to some "unfamiliar or even frightening" places.
UPDATE: As Brian points out, the Issue 1 architect wants all the other laws to change instead of fixing his:
Phil Burress of Cincinnati, a leader in the drive to pass Issue 1, said the domestic violence law needs to be amended "to bring about equal treatment," and noted that legislation to that effect has been introduced by Rep. Jim Raussen, a Cincinnati Republican.

"There's nothing wrong with the constitutional amendment," he added. "If there's any law contrary to the constitutional amendment, we will fix it."
We think it's an open question of how sincere Burress even is. It's not like this was an unforeseen problem when Issue 1 was drafted. Burress knew exactly what he was doing.


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