National NOW Times >> Summer/Fall 2005 >> Article

State Anti-Marriage Amendments Threaten Domestic Violence Laws

By Julie Goldscheid, Associate Professor, CUNY Law School

You may have thought that it was enough of a threat to our civil rights that states have enacted anti-same sex marriage constitutional amendments. But courts in Ohio have interpreted that state's amendment in a manner that has serious, if unintended, consequences for victims of domestic violence.

During the last decade, nearly 20 states have approved anti-same-sex marriage constitutional amendments, including 11 that were approved during the November 2004 election. These amendments advanced the radical right wing's campaign to prevent legal recognition of same-sex relationships and families. Grassroots groups argued that voters should reject the amendments because they legally sanction discrimination against lesbians and gay men. Opponents also warned that these amendments could reach more broadly than voters might imagine and jeopardize the ability of large numbers of people — gay or straight — to enjoy legal rights and benefits ranging from health care to the protections of the criminal laws.

Fears of these unintended consequences have come to fruition in Ohio, which enacted a broadly drafted constitutional amendment in December 2004. In addition to limiting marriage to the union of a man and a woman, this amendment prohibits the state from creating or recognizing any "legal status" for unmarried individuals that approximates marriage.

Soon after the amendment became law, defendants in domestic violence cases who were not married to their partners began using the amendment to avoid domestic violence laws. When domestic violence victims brought criminal charges against their abusers, or sought protective orders, defendants argued that Ohio's anti-domestic violence laws are now unconstitutional as applied to them. For over 25 years Ohio's anti-domestic violence laws have recognized the special harm inflicted by intimate partner violence, and have authorized criminal prosecutions and the issuance of civil protective orders against abusers even if the perpetrator and victim were not married.

Over the last several months, trial courts in Ohio have issued conflicting opinions. Some have reasoned that the domestic violence laws do not confer any "legal status" and therefore unmarried perpetrators can still be prosecuted without creating any conflict with the new constitutional amendment. Other courts, however, have ruled that the domestic violence laws can no longer be applied to unmarried perpetrators, because doing so would conflict with the amendment's proscription against granting marriage-like protections to those who are not married. Those courts found that the amendment required them to declare the parts of Ohio's laws that protect unmarried couples from domestic violence to be unconstitutional.

The issue is being reviewed by appellate courts in Ohio, which will now analyze the amendment's breadth and how it affects Ohio's commitment to vigorous enforcement of anti-domestic violence laws. But these cases have ramifications beyond Ohio. They highlight the importance of taking seriously the unintended consequences of anti-same sex marriage amendments. They offer a cautionary tale to any state considering such amendments, as well as to those contemplating similar federal prohibitions. Any legislator or voter considering such an amendment should meticulously evaluate the full range of possible ramifications.

Perhaps more importantly, the amendment's brief history in Ohio underscores why it is critical for all those concerned with civil rights to oppose these amendments. It is another example of how the radical right wing's strategies to curtail civil rights cut across lines of gender and sexual orientation. At the same time, it is a stark reminder why those fighting discrimination, whether it is based on sexual orientation, gender, domestic violence or membership in another marginalized group, must work together to ensure equality for all.