The “Myths & Facts” sheet published by www.VoteForMarriageNC.com says that the argument that the amendment could invalidate domestic violence laws is a myth that is “an example of the length to which opponents of the amendment are going to trick voters into opposing the amendment”.
The pro-amendment Myths & Facts sheet goes on to say that no state with a similar amendment has ever ruled that it has any impact on domestic violence laws, and with respect to the state of Ohio, the “for” sheet says that the Ohio Supreme Court made it clear that their marriage amendment would not impact domestic violence protections. I will have more to say about Ohio’s experience with this issue in a moment.
The Constitutional Amendments Publication Commission, a neutral body made up of state officials charged with the responsibility of explaining the amendment to the voters, made both sides of this debate unhappy with its explanation about the impact on the domestic violence laws. I discussed their work and provided a link to their findings in a previous post: https://ncamendmentonetruth.wordpress.com/2012/03/20/our-nc-government-admits-that-the-impact-of-this-amendment-is-unclear-so-it-must-be-true/
The Commission said that there is a debate among legal experts as to how domestic violence laws will be impacted by the term “domestic legal union” in the amendment, and that “the Courts will ultimately make those decisions”.
The judges who decide domestic violence issues at the trial court level are District Court judges. Domestic violence is a serious problem in NC and our District Court judges are very busy adjudicating these cases. In Mecklenburg County, the volume of cases is so high that the Court has to devote one courtroom just to domestic violence cases.
I recently submitted a chart by Stan Brown, a former District Court judge, on the family law implications of Amendment One. https://ncamendmentonetruth.wordpress.com/2012/04/11/guest-post-a-former-district-court-judge-and-family-law-attorney-focuses-on-family-law-issues/
Stan Brown concluded that Amendment One will cause problems in many areas of the law with which District Court judges deal on a daily basis — particularly family law issues — but he does not foresee a problem for the domestic violence laws. He had this to say: “Passage of the amendment would not alter, limit, or complicate the current applicability, which are very effective, of the current domestic violence statutes; domestic violence, while it often occurs between spouses, is not limited to spouses and the legislature has the authority to deal with violence between citizens”.
Thus, were Stan Brown on the bench, and a lawyer were seeking to challenge the domestic violence laws on the basis of Amendment One, the motion would be denied.
So, is that the end of the debate? We have the “myths” argument from the “for” side and the opinion of a well-respected attorney and former District Court judge who would not go so far as to allow Amendment One to impact domestic violence laws. Is that enough? Maybe. Maybe not, for the reasons discussed below.
There are more than 30 District Court districts in North Carolina and more than 250 District Court judges in North Carolina. Is it possible that some of them will rule that Amendment One does impact domestic violence laws in some way?
Some law professors think that some District Court judges and appellate judges could decide that Amendment One does impact domestic violence laws. This is exactly what happened in Ohio, until the Supreme Court of Ohio settled the issue.
The case that resolved the issue in Ohio was The State of Ohio v. Carswell, 114 Ohio St. 3d 210, 871 N.E. 2d 547 (2007). The defendant in that case was charged with domestic violence against a victim to whom he was not married. The trial court found that the indictment was unconstitutional based on the marriage amendment adopted by the voters of Ohio.
The Ohio domestic violence law said that no one shall knowingly cause or attempt to cause physical harm to “a family or household member”. The state intended to present evidence that the victim was “living as a spouse” with defendant and was therefore a “family or household member”. The trial court concluded that the law was unconstitutional because it recognized a legal status similar to marriage for unmarried persons.
The marriage amendment in Ohio said this: “Only a union between one man and one woman may be a marriage valid or recognized in 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 Supreme Court started its analysis from the proposition that a presumption existed under Ohio law that statutes are presumed to be constitutional, and before it can declare a statute unconstitutional it must appear “beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible”.
The Ohio Supreme Court said that the intent of the Ohio amendment was to prohibit the recognition of marriage between persons other than one man and one woman and to prevent recognizing any similar status, such as civil unions. The Court then discussed the Ohio domestic violence statute and who it is designed to protect, saying that it recognizes a special class of victims who have or have had a special relationship with the defendant. It just so happened that the Ohio statute defined “person living as a spouse”, for purposes of the domestic violence laws, as persons who are living or have lived together, either in a marital relationship, or a cohabitation relationship.
The Ohio Supreme Court said that while the intent of the domestic violence statute is to “protect persons from violence by close family members or residents of the same household”, the intent of the marriage amendment was to prevent the creation of a marriage or a special relationship that substitutes as a marriage unless it is between one man and one woman. Thus, the Court concluded that the “person living as a spouse” language was simply a classification of the types of persons significant only for purposes of the domestic violence statutes and was not an unconstitutional statute designed to create a quasi-marital relationship.
Not everyone on the Ohio Supreme Court agreed, however. There was a written dissent attached to the opinion. In that dissent, one of the Justices felt that the language of the constitutional amendment implicitly repealed the domestic violence laws insofar as it applied to “persons living as spouses”. The Justice argued that persons “living as spouses” who were unmarried, did attain a legal status, by their ability to pursue protection for a crime of domestic violence. Because the domestic violence laws have consequences quite different from regular assault, said the Justice, the relationship of the parties does matter. Accordingly, this Justice stated that the domestic violence statute was unconstitutional and the defendant should be charged only with simple assault.
So did the Ohio Supreme Court get it right and does it’s ruling apply to the law in NC?
In my opinion, the conclusion of the Ohio Supreme Court was well-reasoned and went to the proper lengths to preserve domestic violence laws, under Ohio law. And yet, UNC law professor Maxine Eichner says that the NC amendment is more restrictive than the Ohio amendment, and Wake Forest Law Professor Suzanne Reynolds seeks a real risk that the NC amendment will impact domestic violence laws.
NC’s domestic violence laws protect those living or who have lived together in the same household, without regard to whether they are married or not. NC law protects persons in a “personal relationship”. That term is defined in NCGS 50B-1 to include spouses/former spouses, persons of the opposite sex living together or who have lived together, parents and children and grandparents, persons with a child in common, persons in an opposite sex dating arrangement and current or former household members. It is this last category that District Court judges use to provide protection for persons who are victims in a same-sex relationship.
Some legal experts argue that the potential exists that District Court judges will strike down the domestic violence statutes in NC, because a broad interpretation of Amendment One prohibits the recognition of any “domestic legal union” other than marriage between one man and one woman. The idea here is that opposite sex unmarried couples and same-sex couples cannot be afforded additonal criminal protections beyond the regular criminal laws of assault and battery, because to do so is the improper recognition of a relationship not permitted by the constitution.
If, in fact, these legal experts are right, and the domestic violence laws are impacted by Amendment One, many protections will be lost for victims of what has become a rising problem in this state.
Personally, having read the Ohio decision and knowing the design of the NC domestic violence statutes, it is my prediction that the North Carolina Supreme Court will not strike down domestic violence protections based on Amendment One.
But that is not the end of the story either.
In Ohio, it took three years before the Supreme Court ruled on the issue. It could take longer in NC.
Before the Ohio Supreme Court ruled, at least 7 trial courts and 2 appellate courts in at least 27 cases construed Ohio’s marriage amendment to invalidate domestic violence protections for persons who were cohabitating. In one case, the Ohio Court of Appeals, the appellate body below the Ohio Supreme Court, ruled that a defendant’s conviction of domestic violence assault on his live-in girlfriend was unconstitutional, because it treated the couple as if they were married, something the appellate court said is prohibited by the Ohio constitutional amendment.
As stated above, NC has over 250 District Court judges. They might not all approach this issue the way that Stan Brown, or other judges like him, would approach it. And what if they don’t? What if they interpret the law the way the trial courts and two appellate courts and the dissenting justice on the Ohio Supreme Court interpreted the law?
The bottom line is that there could be a lot of casualties along the way because of a poorly worded amendment that reaches beyond the issue of “marriage”. The lives of real people in same-sex and opposite sex relationships could be affected. Some people will have to hire lawyers and pay unnecessary well-earned money for appeals related to this constitutional issue. Others may not have the financial means to appeal to appellate courts, much less wait on the legal process to work through the courts to protect them from further acts of domestic violence.
Here is another twist. In NC, the setting of bond before a Judge versus a magistrate (which could keep the defendant in jail for at least 24 hours and provide more protection) and charges for domestic criminal trespass, both exist for present or former spouses or persons who have lived together “as if married”. This is interesting, because under current NC law, you are either married, or you are not. There is no such thing as common law marriage in NC. Meaning, therefore, that there is an “as if married” status under some portions of current criminal domestic violence law in NC.
It is not clear what “as if married” means under NC law. Perhaps to one judge it means only an opposite sex couple who lives together in a long-term committed relationship who share their living expenses. Perhaps to another judge it means something else. Might that language – “as if married” – be subject to attack following Amendment One, and if it is, might it be a problem for opposite sex couples who may currently have protection “as if married”?
Is it a stretch to say that a District Court judge in Avery County, at the northwest corner of the state, might rule differently than a judge in New Hanover County, at the southeast corner of the state? And what about all the jurisdictions in-between, the large and the small, the one in the city and the one in the town, and the one in the rural area and the one in the urban area? There are over 250 different legal minds who will be at work at the trial court level on these issues and there is a good chance that not all judges will agree. Experience has shown this to be the truth. That is why we have appellate courts.
The inconsistency in rulings, which is likely to occur given the number of trial courts and trial judges, could mean that the woman I represented recently for free through the Legal Aid society, might end up with a different result. She was shot by her ex-boyfriend and we obtained a civil domestic violence protective order, and he is serving his sentence in jail. If Amendment One were in existence, you can bet that there would be legal arguments about the constitutionality of the statute. The reason: she was not married to him but only had a child with him and lived with him”as if married”.
And what if the “for” side is wrong? What if our highest court does not follow the lead of the Ohio Supreme Court? If that occurs, then it will take much longer, until the Amendment is repealed, to fix the problem.
So here is the truth. This potential impact on the domestic violence laws is not a “myth”, or a cry that the sky is falling, as the “for” crowd claims, and it is not a certainty, as the “against” group claims. It is, however, as the Constitutional Publications Commission said, a potential legal issue that will have to be sorted out in the courts.
And here is the sad part of this story. If the amendment language had been limited to “marriage”, as the original house bill proposed, we wouldn’t have this issue.
The issue of the continued viability of the domestic violence laws is just another reason that Amendment One is about more than just “marriage”. It is also another good legal reason to vote against the amendment.