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Amendment One and domestic violence

I've been bothered by the assertion that Amendment One, if it passes, will stop enforcement of domestic violence protections for victims who aren't married to the abuser.

This notion comes from a paper written by faculty members at the UNC School of Law. They base their view on experience in Ohio, which in 2004 passed a constitutional amendment that said:

“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.”

This prompted unmarried defendants in domestic violence cases to move for dismissal of charges against them, or to have convictions overturned, on the grounds that there was no recognized domestic relationship under the new constitutional provision. Some courts agreed with that reasoning, although most did not and the Ohio Supreme Court eventually put an end to the claim in a forceful 6-1 ruling.

Despite that decision, the UNC professors think the North Carolina amendment would create similar problems or worse:

"If a North Carolina court followed the Ohio Supreme Court’s rationale, it would find that our existing domestic violence protections violated our Amendment. This would mean not only that North Carolina’s civil remedies for domestic violence would be invalidated, and could no longer be accessed by victims who had not married their abusers, it would also mean that criminal remedies that rely on the same statutory definitions would be invalidated. This would mean that arrests, prosecutions, and sentencings of defendants would all be open for challenge in any case in which the abuser had not been married to his victim."

I think they're crying wolf. There is a significant difference between Ohio and North Carolina, and it is a difference that favors domestic violence protections in North Carolina.

In Ohio, domestic violence laws protected a "family or household member," a spouse, former spouse or "someone living as a spouse."

The last phrase is what abusers seized on after passage of the Ohio amendment. If the state was barred from recognizing a relationship that approximated the "design, qualities, significance or effect of marriage," they argued, there was no such status as "someone living as a spouse." Therefore, if they were not a spouse, former spouse or family or household member, they could not be prosecuted under domestic violence laws.

You can see how that would have confused some judges. You can read the Ohio Supreme Court decision to see how that argument was refuted.

Now to North Carolina. Our laws provide much broader domestic violence protections. They are found in General Statute 50B. As you can see, the people covered include spouses and former spouses, but also people of the opposite sex who live together or have lived together, are in a dating relationship or were in a dating relationship, and people (no gender specified) who are or were members of the same household.

The North Carolina amendment, in addition to recognizing only opposite-sex marriage, would further deny recognition of any other "domestic legal union." But there is no status described in 50B that amounts to a "domestic legal union." A dating relationship is not a domestic legal union. Nor is sharing a household.

The UNC authors posit that a "broad reading" of the amendment by a judge might lead to a conclusion to the effect that a "dating relationship" is somehow a "domestic legal union" that no longer could be covered by domestic violence protections. I am disappointed they have such a low opinion of the intelligence and common sense of the North Carolina judiciary. I don't. Any judge will know there was no intent to invalidate domestic violence protections, and there is no reading of the plain language that suggests otherwise.

Some 30 states have marriage amendments in their constitutions. There has not been a collapse of domestic violence protections in those states. There will not be such a collapse in North Carolina.

I am not advocating for passage of this amendment. I don't believe that marriage should be a constitutional issue. To me, how it should be defined is a matter of law, not constitutional right, and it should be left to legislatures.

If it does pass, however, I would not want victims of domestic violence to fear calling the authorities because of a mistaken belief that protection would be denied them if they are not married to the abuser. I suspect that is a view that was manufactured to build opposition to the amendment.

Addendum:

Another contention of the UNC professors is that the amendment will cut off domestic partner benefits for same-sex couples in public employment. Here are instances showing that this has not happened in Ohio:

http://www.cleveland.com/cuyahoga-county/index.ssf/2012/02/cuyahoga_coun...

http://www.citybeat.com/cincinnati/article-24708-city_hall_considers_.ht...

http://stuffqueerpeopleneedtoknow.wordpress.com/2010/11/23/columbus-city...

http://www.gaypeopleschronicle.com/stories07/november/1116071.htm

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Posted by Doug Clark on Friday, April 13, 2012 at 9:00 pm

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retiree

April 14, 2012 - 2:37 pm EDT

Good report Doug. Sadly though, what does that tell you about those teaching law at UNC? To me it says they lean to the left and are educating our youth in that manner as well. They would have you believe the sky is falling, but we know it isn't.

RandolphBloke

April 14, 2012 - 4:02 pm EDT

Your anti-UNC bias has no bounds does it? The law school at UNC is not remotely in the top tier of liberal schools. It's a pretty moderate school. The report is also quite careful to say that things *could* happen, not that they would. Several other states have studied the situation in North Carolina and come to the same conclusion. It *could* happen.

It is a poorly written amendment that might possibly lead to a lot of unneeded legal expense for the state. The fact that even those who propose it feel that it won't hold up for the long term is yet another reason not to be bothering with it. That those people are supposed to be fiscally responsible it makes zero sense at this point.

It's doubly disturbing that most of the big businesses these folks normally represent seem to think it's a bad thing for business in the state shows that this is all just for show and to stir up the passions of the ignorant and the self-righteous.

Doug

April 14, 2012 - 4:13 pm EDT

What other states have studied the North Carolina amendment? I'd be curious to see what others have said.

I think the business concern is being exaggerated as well. We already have one of the weakest economies in the country, trailing most of the states that bar same-sex marriage in their constitutions. I actually heard a Democratic legislative candidate (Bruce Davis) say the other day that our economy could "collapse" if this passes.

However, I agree that it was a terrible move to put this amendment on the ballot. It has dragged our state into an unproductive and divisive debate. Ironically, though it might pass by a narrow margin, I think it has increased support for same-sex marriage.

Spag

April 15, 2012 - 10:28 am EDT

Same-sex marriage and civil unions are already prohibited in NC. That must explain why our economy is so terrible. In fact, the lack of both here and elsewhere could explain why the world economy still can't get passed the Dark Ages.

I'm surprised we made it this far.

BillWright

April 14, 2012 - 2:41 pm EDT

A well thought out examination of this fractious bill, although I doubt any blinders will be removed.Those who simply support or reject it without actually examining it are just feeding their own prejudices.

However, it makes for a good distraction over more substantial issues facing North Carolina.

Pay no attention to the man behind the curtain.

meichner

April 14, 2012 - 10:19 pm EDT

Dear Doug,
As one of the writers of the UNC paper, I appreciate the thoughtful engagement. The distinction we made in our paper between the Ohio amendment and the proposed North Carolina amendment, however, doesn't come through in your post. As we note, the Ohio amendment does not ban all state recognition of nonmarital relationships; instead, it simply bans state recognition "that intends to approximate the design, qualities, significance or effect of marriage." In contrast, the North Carolina amendment, if read literally, would ban recognition of (meaning attaching legal consequences to) "domestic legal unions" (whatever that might mean, but courts could certainly interpret the term to mean all nonmarital romantic relationships) altogether; our language does not limit the ban on recognition of these relationships to recognition that approximates marriage. Accordingly, although the Ohio Supreme Court found its domestic violence protections to be lawful precisely because the Ohio statute did "not create or recognize a legal relationship that approximates the designs, qualities, or significance of marriage," because our amendment is far broader, our domestic violence protections are at risk.

And although it is our report that has been widely publicized on the issue, family law professors at every law state across the state -- at Campbell, Charlotte, Duke, Elon, and Wake Forest, as well as UNC -- have gone on record as sharing our concern with the vague and untested language of the proposed N.C. amendment, as has the law professor at Ohio State University who originally warned that passage of that state's amendment could wreak havoc with Ohio's domestic violence protections.

Best,
Maxine Eichner
Reef C. Ivey Professor of Law,
UNC School of Law

Doug

April 15, 2012 - 8:29 am EDT

Prof. Eichner,

Thanks for this reply. You're the expert on these matters. I'm only a layman.

At the same time, I have to note that all your suppositions are predicated on the chance that our courts would give the broadest possible interpretation to this proposed amendment. It's been my purely amateur observation over the years that our conservative state courts generally give a very narrow interpretation to statutory and constitutional language. They don't try to find meaning that's not explicitly there.

Nevertheless, the fact that this debate is taking place at this level points to the foolishness of the authors of this amendment.

Doug

April 15, 2012 - 9:20 am EDT

Just another thought. While I understand that a domestic legal union implies a nonmarital romantic relationship, I don't see how that could work in reverse. Is a high school couple going to the senior prom in a domestic legal union? What about a situation where a man is married but having an affair? Are he and his lover in a domestic legal union even though he's also in a marriage to someone else? And doesn't "domestic" mean sharing living quarters?

Spag

April 15, 2012 - 10:21 am EDT

Professor Eichner, I will debate you or any other person in this state on this issue. It is clear that because of the lack any real analysis applying the actual language of the law to the facts, that this theme being advanced is about politics and not law. There isn't one case in North Carolina that you could analogize to your position, much less demonstrate any propensity of the courts to apply the law in the way you describe.

The reality is that the domestic violence arena is highly politically charged as those who actually practice law in the courtroom can tell you and the domestic violence statutes are liberally construed in favor of potential victims. The whole idea that a court would find a way to eliminate protection for all unmarried persons (including those children who according to this theory must also currently be part of a "domestic legal union") based on the language of Amendment One is in defiance of reality, not to mention that it does not survive logic.

This Amendment should be debated honestly and not with politically motivated misinformation.

Samuel S. Spagnola
Board Certified Specialist in Family Law

Spag

April 15, 2012 - 10:25 am EDT

Also, I need to commend you on your piece, Doug.

As you are probably aware, I sent a proposed op-ed to your paper on this argument and other rabbits that so called legal "experts" and others have tossing out there for people to chase.

In that op-ed, I went into greater detail as to why the arguments advanced by Professor Eichner and others do not survive an honest legal analysis.

Perhaps I should post it here in full and let her respond.

Doug

April 15, 2012 - 1:59 pm EDT

Sam, thanks for your comments. I saw your article and gave it a scan although not a thorough reading Friday. Our problem with publication is its length of more than 1,500 words. However, I'm hoping we can print some legal analysis in Sunday Ideas before the vote, and I'd like to consider a version of yours. Could you condense a bit?

Spag

April 15, 2012 - 3:10 pm EDT

I will work on it if I get the chance. The difficulty is that legal arguments often turn on fine points that can't be overlooked.

In any case, I believe this debate over the Amendment is rather straight-forward regardless of which side individuals come down on and shouldn't be obfuscated by either side by the use of histrionics.

The world won't come to an end whether it is passed or not.

brian444

April 15, 2012 - 4:45 pm EDT

Exactly. As I've noted before on this blog, it's a pointless exercise to conjure up additional talking points ungrounded in reality. Although I oppose the amendment, the intellectual dishonesty and moral preening of its opponents are quite off-putting.

overtaxed

April 15, 2012 - 2:42 am EDT

Count this voter as one that thinks North Carolinians and Americans should be concerned more about the money our elected officials take from us via taxes and give to their friends and supporters.
Wake Up People, it doesn't take a Rocket Scientist to see the Marriage Amendment and other things are well placed distractions to divert our attention away from the fact that our elected officials are robbing the taxpayers.

Paul Daniels

April 15, 2012 - 7:55 pm EDT

Doug:

Well done! We can always count on you for a thoughtful analysis of issues, setting aside your own preference. There has been a great deal of scare mongering over this amendment that is without basis. As you pointed out earlier, the reason that this amendment may have been written the way it was, was in anticipation of a ruling like that that came out of the 9th Circuit, which said, in essence, that once a state has allowed civil unions it has to allow homosexual marriage because there is no real difference between the two, and that once a state has allowed homosexual marriage, it cannot ban them, regardless of how those unions became legal. A fair debate on the this issue should include an understanding of how the 9th Circuit's ruling would affect marriage in many states if it became the law of the land. You are the only person I have seen raise this issue, which is again to your credit.

As for me, I will be supporting the amendment. Marriage is too important to be left to partisan pols in the legislature or activist judges.

Best regards,

Paul Daniels

EllieP

April 16, 2012 - 11:40 am EDT

Well done, Doug. Great comments by Spag, as well. I appreciate the sober interpretation vs. the scare tactics on the other side. The "anti" Amendment One crowd fails to acknowledge that we are surrounded on all sides by states with similar laws. Which SC, TN, VA families are being wrought asunder as a result? How are their economies performing compared to NC?

Thank you for the Ohio links and the overall rebuttal to the domestic violence side of this debate.

Doug

April 16, 2012 - 12:42 pm EDT

Thanks, Paul and EllieP. Just my opinion.

Paul,

I don't know if the 9th Circuit opinion would survive appeal to the U.S. Supreme Court, but as long as it stands it could provide a model for other courts. One of the pillars for striking down the California amendment was, as you say, that California provides civil unions, which were so similar to marriage that only unjustified discrimination against same-sex couples could explain the difference. So civil unions are legal stepping stones to marriage. What I don't know is whether the authors of the N.C. amendment anticipated this line of attack and are seeking to pre-empt it.

EllieP

April 16, 2012 - 1:04 pm EDT

I believe this amendment was an effort to preempt so-called "activist" judges from forcing the issue of gay marriage into, for example, religious institutions. In general, it is not just an aggressive LGBT agenda, but an aggressive sexual agenda, period, that is behind some of these efforts (recall Sandra Fluke's recent battle against Georgetown re: who pays for her contraceptives).

Society seems to be trying to delineate where the line is drawn between sexual freedom and religious freedom. Personally, I believe the conversation will eventually lead to civil unions for all with the "marriage" issue being left to religious institutions. But that is a very long conversation and would take at least a decade to resolve, in my opinion.