Unexpected Consequence Of Same Sex Marriage Bans

March 6, 2012 by

Amending a state’s constitution to prevent same-sex marriage could end up having unmarried same and opposite couples face acts of domestic violence without the ability to obtain relief by the law. Sounds impossible, right? Wrong, well at least for a little while. In a recent article from North Carolina’s News Observer, this same impossible situation was found to be all to true for residents of the state of Ohio for a period of time in 2003 and 2004.

The article focused on a proposed amendment due to be considered in the state of North Carolina that would effectively define marriage to exclude marriage or any other type of recognized civil union from being possible for same-sex couples through an amendment to North Carolina’s state constitution. The article then provided commentary that detailed the particular experience in Ohio during 2003-2004 that dealt with such an amendment to the state’s constitution.

From this discussion, it was revealed that in 2003, after a Massachusetts court found that the Massachusetts state constitution guaranteed marriage rights for same-sex couples, Ohio, amongst many other states, rushed to amend their respective constitutions to prevent same-sex marriage. In Ohio, the amendment passed quickly through the state Legislature and then on to voter approval. But, the problem arose because Ohio’s amendment included a sentence prohibiting recognition of “a legal status for relationships or unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.” This sentence, seemingly innocuous, resulted in a series of confusing Ohio trial court decisions that ultimately led to Ohio’s highest court, the Supreme Court of Ohio, entering a ruling clarifying the intent of the amendment. Why? Well, there likely would not have been an issue until the public defender in Cuyahoga County, Ohio who represented a man accused of committing domestic violence against his live-in girlfriend asked a judge to throw out the case against his client. How? The public defender argued that since the new amendment in the constitution prohibited recognition of a special legal status for unmarried people in a marriage-like relationship, that domestic violence laws could not apply to live-in boyfriends and girlfriends. The court ruled in favor of the public defender’s argument and news quickly spread across the state of Ohio to other defense attorneys who made similar arguments. The result? A confusing patch-work of holdings and rulings interpreting the intent of the amendment leaving many victims of domestic violence without the ability to obtain relief from the judicial system which, in the end, was finally addressed by the Ohio Supreme Court which ruled that the amendment did not prevent domestic violence injunctions from being granted to unmarried couples.

Considering the fact that many states are facing a similar situation, the example of Ohio should serve as a cautionary tale regarding amending the constitution of a state.

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