Here are points in support of the anti-civil union amendment made by Paul Stam, North Carolina House Republican leader. They have been heavily forwarded and posted on Facebook, and many folks feel confused. Below each of Stam’s arguments you will find some additional information and context that may help your thoughtful consideration. The first is the amendment’s potential effect on domestic violence laws.
1. The Marriage Amendment Will Not Affect The Enforcement Of Domestic Violence Laws. Opponents would have you think the Amendment obliterates our domestic violence law. The cases they use as authority are Ohio appellate cases later overturned by the Ohio Supreme Court which found the domestic violence statutes consistent with the state’s marriage amendment. In Kansas the outcome was the same. Marriage amendments have had no effect on the enforcement of domestic violence statutes. 30 other states have marriage amendments. In all 30 states domestic violence laws continue to be enforced.
Three things are important to consider here:
1) Is it worth three years (as in Ohio) of uncertainty and non-enforcement of domestic violence protections to pass the amendment in North Carolina? How many women and children may be put in danger during that time? What kinds of stresses occur to families living in limbo, not knowing if they will be protected from abuse?
2) What will the cost be to the state to adjudicate all of the court cases? Regardless of one’s faith that domestic violence laws will be upheld, it seems fairly certain that they will initially be challenged. This is the way all new laws are tested and is exactly what occurred in Ohio. It is worth at least hundreds of thousands of dollars to create an amendment that doesn’t do anything new, or is that money that could be better spent to restore funds to our education budget, about to be cut for the third year in a row?
3) How do the language of the two amendments differ and how do their domestic violence laws compare?
Background and context:
The text of the 2004 Ohio amendment is as follows:
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.
According to the Raleigh News and Observer, at the time, Ohio State University law professor Marc Spindelman worried,
“If the concern of the marriage amendment was unmarried couples not be treated under the law the same as married couples, then domestic violence laws – which started out protecting married women, then domestic partners more generally – those laws were susceptible to being attacked,”
Pro-amendment forces ridiculed that prediction.
“Proponents, when faced with those concerns, initially responded with a kind of sneering dismissal that anything like this would be likely to happen,” Spindelman said.
But it did. Within about three months of the amendment passing, a public defender in Cuyahoga County representing a man accused of shoving his live-in girlfriend asked a judge to throw out the case. The attorney argued that since the new provision in the constitution prohibited recognition of a special legal status for unmarried people in a marriage-like relationship, that meant domestic violence laws couldn’t apply to live-in boyfriends and girlfriends.
In 2005, Ohio Judge Stuart Friedman found the state’s domestic violence law “unenforceable. Here you can find a list of some Ohio court decisions in the years following the amendment. (This is from the Marriage Family Law Foundation, whose goal is to point out court cases where the amendment did not harm domestic violence protections. It also highlights the attractiveness to defendants of using the amendment to evade domestic violence charges.) It IS TRUE that the Ohio Supreme Court ruled that the domestic violence law and marriage amendment did not conflict — in July of 2007. (See overview of judgment by NY law professor.) That means that for three years, the status of domestic violence protections in Ohio were in limbo, and during that time, in at least 27 cases, charges were dismissed or convictions were overturned.
The significant difference in the two states’ amendments is that the Ohio version states: no “legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.” The North Carolina amendment states, “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.”
People have argued both sides as to how the different language will affect potential court cases. In the Ohio Supreme Court ruling, the Chief Justice stated that, “considering them as household members for the limited purpose of the Domestic Violence statute was not akin to according a full-blown legal status similar to marriage on their relationship.” In other words, the fact that unmarried individuals were not trying to approximate marriage was crucial to the ruling. Families can retain legal domestic violence protections as long as they are not trying to approximate marriage. North Carolina’s amendment has no such clause.
The Ohio domestic violence law covers “family or household members.” The North Carolina domestic violence law covers people with a current or past “personal relationship,” which includes, “current or former spouses, persons of opposite sex living together or dating (past or present), parents and children, those with a child in common, and current and former household members.”
It is anyone’s guess how all of that language will shake out (and it is probably best to ask for people who want to make a guess to have some experience with North Carolina law). In general, though, the wordier the language of a law, the more likely it is to be litigated.
As pointed out by Anne Bowman and Richard Kearney, “…lengthy state constitutions tend to be plagued by contradictions and meaningless clauses. Some even address problems that are no longer with us, such as the regulation of steamboats.” These dynamics surely lead to legislative impediments and struggles that are rooted in the semantics of the individual documents, not in transparent policy making agendas. Ultimately, the implication is that these elements create an atmosphere of litigation and stalemate that wastes time.
As a last note on the topic of litigation, Ohio Chief Justice Moyer’s opinion also suggested that the amendment will have the effect of outlawing future civil unions (gay or straight) – a possibility which will have to be settled by even more litigation.
Baptist Discernment on Social Issues 