About that anti-gay marriage amendment: Watch out for collateral damage

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The NC Coalition Against Domestic Violence came out against the anti-LGBT marriage amendment today, warning that a similar constitutional change in Ohio wrecked havoc with its laws protecting people — married or unmarried — in domestic violence cases. In Ohio, the DV law protected unmarried folks who lived together "as if married," but of course, once the state constitution said that the only "union" that state law could recognize as valid was a marriage between a man and a woman, that part of the DV law was ruled unconstitutional.

The coalition's statement is copied below.

Meanwhile, there was the story in The New York Timesfollow the link in this post: Man is killed in Mississippi in a brutal crime; his family is suing the killers for damages; but the victim's gay partner of many years cannot sue, because under the law in Mississippi they couldn't be married and — well, you know.

NC Coalition Against Domestic Violence Announces Opposition to
Gay Marriage Constitutional Amendment
Amendment Would Put in Limbo Application of State’s Domestic Violence Laws

The North Carolina Coalition Against Domestic Violence today announced its opposition to the anti-gay marriage constitutional amendment the General Assembly is planning to consider next week.

The coalition is particularly concerned that SB 106, the legislation expected to be considered, could block the application of domestic violence laws in situations where the victim — regardless of sexual orientation - is not married.

“Getting justice for victims of domestic violence — married or not - is already extremely difficult. Enacting this amendment risks creating an insurmountable hurdle for unmarried victims, regardless of sexual orientation,” said Beth Froehling, NCCADV’s Co-Executive Director. “We’ve seen this happen in Ohio, where their marriage amendment has been used as a defense against application of domestic violence laws as applied to some unmarried domestic violence victims.”

At a minimum, enactment of an amendment in North Carolina would create significant legal uncertainty about the constitutionality of current domestic violence laws. This will put at risk domestic violence legal protections to those already vulnerable and waste state resources litigating the application of these laws.

“This amendment is playing with fire in terms of our domestic violence protections,” said Froehling. “The consequences in terms of domestic violence protections may be unintended but they are not unknown as the Ohio experience shows. We urge the General Assembly not to consider this amendment.”

Some argue that SB 106, which the North Carolina General Assembly is expected to consider, is even broader than Ohio’s constitutional amendment. See below for more legal details on the possible effect of this amendment on domestic violence law.

More information from the coalition is below the fold.

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Anti-Gay Constitutional Amendment
Impact on Domestic Violence Laws
Broader Harms of SB 106/HB 777, the Anti-Gay Amendment

The anti-gay amendment will not only harm same-sex couples, but also domestic violence victims and others.
· If the anti-gay amendment is passed, the application of North Carolina’s domestic violence laws themselves will be left open for question—threatening our state’s victims of domestic violence.
· Additionally, the work done by numerous state agencies relying upon current domestic violence laws will be thrown into flux, and the protections and resources afforded to North Carolinians in abusive relations could be seriously and dangerously eroded.[1]
· In the past, North Carolina courts have extended N.C.G.S. 50B domestic violence protections to members of same-sex couples. If the proposed amendment passes, the protections to members of these unmarried couples may be rendered unconstitutional as witnessed in Ohio following passage of an amendment less restrictive than that being considered in North Carolina.[2]
· Ohio passed a marriage amendment in 2004. Its language is narrower than North Carolina’s proposed anti-gay constitutional amendment and it was passed for the same reason — to prohibit same sex marriage.
· But trial courts all over Ohio, as well as two appellate courts, have held that because of Ohio’s Marriage Amendment, the state domestic violence law is unconstitutional as applied to some unmarried domestic violence victims.[3]
· This means that batterers have been able to walk free and that victims of domestic violence are living in fear because of an amendment even more narrow than the one proposed in North Carolina.

The anti-gay amendment will impact whether victims of domestic violence are protected.
· North Carolina has long recognized that domestic violence victims deserve protection whether or not they are married to their abusers and have made sure that domestic violence laws cover unmarried victims—
but those protections may conflict with the proposed constitutional amendment’s prohibitions.
· For example, Ohio’s domestic violence law protects victims in the instance where though unmarried, they are cohabiting — characterized in the statute as “living as spouses”—with their abuser. But the Ohio Marriage Amendment made it unconstitutional to create a legal status that “simulates marriage.”
· Although the Ohio Marriage Amendment was probably intended only to affect same sex couples, courts in Ohio found that the domestic violence law’s protections for victims who are cohabiting with their abusers are unconstitutional.

North Carolina’s amendment-related domestic violence protection problems could be worse than those experienced in Ohio.
· Although Ohio’s is the first amendment to be litigated extensively, it is just a harbinger of problems that would be created in North Carolina.
· Because the language of North Carolina’s proposed anti-gay constitutional amendment more restrictive than the amendment in the Ohio situation, the same set of unintended consequences are likely to imperil the safety of thousands of victims of intimate partner violence if Senate Bill 106 is enacted.
· North Carolina clearly did not intend to treat victims of domestic violence differently on the basis of their marital status. However, if passed, our state’s anti-gay constitutional amendment could have the same impact as the Ohio Marriage Amendment: It could undo much of the progress that the state legislature has made in giving prosecutors the tools needed to hold batterers fully accountable.

A conflict between the anti-gay amendment and domestic violence laws would mean that some batterers get out of jail free.
· In Ohio, a state with a marriage amendment less restrictive than that proposed in North Carolina, meant that some batterers were set free.
o Dallas McKinley was convicted of a felony because he had hit, pushed, and thrown things at his girlfriend while he was on a drinking binge — but he got the conviction overturned because they weren’t married.[4]
o Donald Steineman was originally convicted of two felony counts after abusing his live-in girlfriend and three year-old adopted son. The court could ultimately upheld his conviction for abusing his son but had to overturn the conviction for abusing his girlfriend.[5]
o David McIntosh had been sentenced to a year in prison after violating a protective order and beating his girlfriend; he successfully got the conviction and sentence overturned.[6]
· Batterers can still be charged with other crimes, such as assault. But in many cases, rather than being convicted of a felony under the domestic violence law—and being sent to jail—they will just be convicted of a misdemeanor. Thus, under the anti-gay amendment, they get away with only a slap on the wrist.

The anti-gay amendment could mean that unmarried domestic violence victims could have their protective orders be deemed unenforceable.
· Under Ohio’s constitutional amendment, some courts have held that convicting an abuser for violating a civil protective order is also unconstitutional.[7]
· In Virginia, where a similar amendment was considered (and eventually passed), domestic violence programs were frantically trying to come up with ways to get more victims into shelters because they wouldn’t have the same access to protective orders as they did before the amendment. This means more money spent on sheltering victims while their abusers are allowed to stay in their homes.[8]

Courts cannot apply marriage amendments without the unintended repeal of domestic violence laws and impact to domestic violence cases.
· North Carolina Courts will not be able to make a choice as to whether to apply the anti-gay constitutional amendment to domestic violence scenarios. A constitution, whether federal or state, is supreme law. If a court thinks that there is a conflict, the Constitution controls and the court will limit the reach of statutes accordingly.[9]
· The anti-gay constitutional amendment, as proposed, would create a conflict between domestic violence laws, and the state constitution. Since the amendment would rewrite the Constitution, it would trump statutory protections, potentially undoing all the work that the General Assembly have done to protect domestic violence victims.

The General Assembly could not simply pass a law to fix the Amendment.
· State legislatures cannot fix a constitutional amendment by themselves. Constitutional provisions are not like statutes — they cannot be addressed by legislatures acting alone. Instead, a legislature must follow extensive rules, costing time, effort and resources.
· Enshrining discrimination in the Constitution is not only wrong, it is incredibly difficult to fix. The anti-gay amendment would be the first time that the General Assembly has amended the constitution in order to discriminate against specific individuals, flying in the face of the state’s tradition of amending the constitution to increase equality.
· Whatever position one takes on same-sex marriage, the Ohio story shows the very real danger that comes from using constitutional amendments to limit rights.

Every new attempt to pass the anti-gay amendment puts more domestic violence victims at risk.
· In Ohio, the marriage amendment let batterers out of jail. In other states, the same arguments have been used to do the same. Passing the anti-gay amendment would multiply exponentially the number of domestic violence survivors whose rights and safety are jeopardized.
· In North Carolina, the potential unconstitutionality of current domestic violence laws as a result of the anti-gay amendment will mean uneven application and uncertainty among numerous judicial districts and state agencies and fewer protections to those already vulnerable as well as an enormous waste of state resources.




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