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When Grandstanding Goes Bad

Jessica at Feministing reports some really distressing developments in Ohio:

I never really thought this argument would stick, but it seems that Judge Stuart Friedman—who ruled yesterday that domestic violence charges cannot be filed against unmarried people—found it compelling enough to screw unmarried women across the state:
Judges and others across the country have been waiting for a ruling on how the gay marriage ban, among the nation's broadest, would affect Ohio's 25-year-old domestic violence law, which previously wasn't limited to married people.

…Before the amendment, courts applied the domestic violence law by defining a family as including an unmarried couple living together as would a husband and wife, the judge said. The gay marriage amendment no longer allows that.

Un-fucking-believable.
Like most decent people, I thought of these anti-marriage initiative as vile opportunism, but not especially consequential. I was mistaken.

UPDATE: To clarify, I never thought that the lack of equal marriage rights was inconsequential. I merely thought that banning gay marriage in states where it was already prohibited was going to be inconsequential -- nobody would be any more discriminated against than they were before. Alas, I was wrong.

March 24, 2005 | Permalink

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» Context for the Recent Ohio Court Decision Invalidating its Domestic Assault Statute in regard to the Unmarried from Too Many Worlds
As a service to those understandably aghast at a recent Ohio state court decision that Ohio's recent constitutional amendment against gay marriage means unmarried persons cannot be considered victims under Ohio's domestic violence statute, here's some ... [Read More]

Tracked on Mar 25, 2005 1:56:11 AM

Comments

So the gays cant marry and guys can beat their girlfriends with impunity?

It's just the gift that keeps on giving.

Posted by: Oh Snap! | Mar 24, 2005 1:24:28 PM

The authors of this bill had no more fondness for fornication than they have for homosexuality.

This is not an unintended consequence. This is two-for-the-price-of-one.

Posted by: Davis X. Machina | Mar 24, 2005 1:25:57 PM

Does anyone know the details of this ruling? Is it possible that the judge may have ruled this way in order to provoke an appeal that would refer the question to a higher court wqhich could decide the constitutionality of the Ogio marriage amendment?

Posted by: JonF | Mar 24, 2005 1:42:25 PM

Does anyone know the details of this ruling? Is it possible that the judge may have ruled this way in order to provoke an appeal that would refer the question to a higher court wqhich could decide the constitutionality of the Ogio marriage amendment?

Anything is possible, but -- judging from the language of the law as reported in the Yahoo! News story -- it appears that the judge just applied the law as written to invalidate the former construction of "family". The Ohio constitutional provision characterized as a "gay marriage ban" invalidates any state or local law that would "create or recognize a legal status for relationships of unmarried individuals".

The construction of "family" in domestic violence law to include unmarried cohabitants clearly recognizes a legal status for relationships of unmarried individuals.

(Arguably, the construction or statutory definition of "family" to include parent and child, however, also recognizes a legal status for relationships of unmarried individuals, too.)

Posted by: cmdicely | Mar 24, 2005 1:52:27 PM

Yes, we liberals have made the mistake of assuming decency and rational argument and business as usual would be enough to defend ourselves against the twin black winds of consequence howling from the religious and libertarian radicals in the Republican Party.

What, Matt, did you expect from folks who believe every text is literal? A panel discussion with no consequences?

Posted by: John Thullen | Mar 24, 2005 2:01:08 PM

The Freepers seem to be fine with this, btw - they seem to think of domestic-violence laws as unnecessary liberal creations, kinda like hate crimes.

Posted by: JavaTenor | Mar 24, 2005 2:03:38 PM

I don't understand the "inconsequential" idea of a gay marriage ban. Just imagine your husband or wife is on their deathbed, and you cant' see them and hold their hand before they die. And when they do die, half of the stuff you both acquired goes to their parents, not you.

Sorry, that's pretty damn consequential in my book. This ruling is just another pernicious and unseen side-effect of encoding bigotry into law.

Posted by: tango | Mar 24, 2005 2:04:38 PM

Re: The Ohio constitutional provision characterized as a "gay marriage ban" invalidates any state or local law that would "create or recognize a legal status for relationships of unmarried individuals".

I don't think this is obvious though: it takes a certain amount of interpretation to get there, which can be contested. After all, the literal meaning of "domestic" is "household". A domestic violence law should quite literally apply to violence within a household, with no implication of relationship among its members. Unless the domestic violence law itself somehow limits its application to household members who can claim relationship status, then I don't see how a literal reading of the anti-gay marriage amendment would conflict with it. After all, the law (domestic violence) does not create a legal status of any sort for members of a household; it simply accepts as a matter of fact that they are members of the same household. By analogy, if a school violence law existed that specified harsher punishment for criminal acts done in a school setting, and did not limit its application to cases where a student or school employee was a victim, could it not be invoked no matter who the victim of said act might be as long as it took place in a school? Location, not relationship would seem to be basis here, unless, as I said, something in the original law did restrict its usage accordingly so that it could not (for example) have been applied to a pair of college roommates getting in a fistfight.

Posted by: JonF | Mar 24, 2005 2:07:02 PM

Here's an anecdote.

A woman moves into a condominium owned by a man. A couple of months later the two of them at are having a night out at a bar and are, late in the evening, feeling no pain.

The woman's flirting with a stranger (definitely, a hotter guy than the condo guy she's living with), and the condo guy starts a fight with his rival. The woman gets involved in the fight and the condo owner smacks her (he claims she just got in the way, but you and I know he took the opportunity to punish her for her "disloyalty").

Under the old Ohio domestic violence law, the judge throws the man out of his condo leaving the woman in occupation until the case is resolved. Under the new law the woman has to move out and sue the "bastard" for damages in assault and battery.

Which is fairer?

Posted by: Ellen1910 | Mar 24, 2005 2:10:27 PM

Tango--I'm not a mind-reader, but my guess is that MY thought the ban would be inconsequential because gay marriage wasn't going to pass in those states anyway, so the consequences you describe would've taken place even if the ban hadn't passed.

Posted by: Matt Weiner | Mar 24, 2005 2:11:38 PM

I think one of the unanswered questions here is whether this really is an unintended consequence, or another volley in the so-called culture wars. The proponents of Issue One, the Ohio amendment that brought about this decision were warned that this might be one consequence - I don't see these individuals objecting to restricting protections to married couples.

They may think of this as merely a bonus round.

Posted by: Brew | Mar 24, 2005 2:13:40 PM

"The Freepers seem to be fine with this, btw - they seem to think of domestic-violence laws as unnecessary liberal creations, kinda like hate crimes."

That seems reasonable to me. Like hate crimes, what we're talking about here is additional penalties for something that's already a crime because of some extraneous circumstances. It's not like domestic violence is now legal in Ohio. It's simply treated like any other incidence of assault and battery. That's fine with me. What's so unreasonable about giving equal treatment to a man who beats his girlfriend and a man who beats a stranger on the street?

Assault is a legitimate concern of government. Family relations and racial hatred are not. I don't think it's appropriate for the government to use its interest in prosecuting assault to promote an agenda that's really about family or race.

Posted by: Xavier | Mar 24, 2005 2:16:31 PM

I don't think this is obvious though: it takes a certain amount of interpretation to get there, which can be contested. After all, the literal meaning of "domestic" is "household".

Membership in a "household" is a relationship, and if the law provides different treatment based on it, it is a relationship recognized in law.

A domestic violence law should quite literally apply to violence within a household, with no implication of relationship among its members.

Laws referred to as "domestic violence" laws very often focus on violence within either a marriage, cohabiting, or dating relationship, regardless of whether or not it occurs within the domus itself. It is based on the existence of a particular relationship with the domestic violence law itself (even if no other law does for the particular relationship) gives legal effect.

A "household" is either a physical locus or a relationship among people based on habitation in a common physical locus. When it is recognized and given effect in law as the latter, it can be invalidated by a superceding law that prohibits legal recognition of certain classes of relationships.

Now, given that quite a lot of law turns on relationships, and quite a lot of those are relationships between unmarried people, does that make Ohio's "gay marriage ban" utterly stupid? Why, yes, it does.


Posted by: cmdicely | Mar 24, 2005 2:29:02 PM

Like most decent people, I thought of these anti-marriage initiative as vile opportunism, but not especially consequential ...

"... for straight people like ourselves"?

Whoa, NOW it's serious.

Posted by: Anderson | Mar 24, 2005 2:29:37 PM

Like hate crimes, what we're talking about here is additional penalties for something that's already a crime because of some extraneous circumstances.

Well, no, that's not true; while the penalties may be different for domestic violence, the more important differences are in non-penal protective procedures like various special "protective orders" that are available specifically to deal with the "extraneous" distinguishing factors of "domestic" violence -- the fact that the parties are cohabiting or otherwise have substantially entangled affairs, such as child custody.

What's so unreasonable about giving equal treatment to a man who beats his girlfriend and a man who beats a stranger on the street?


Ohio's DV law -- until now -- allowed the unmarried mother of a child to file for a domestic violence protective order against the father for abuse of the child.

Now it does not, though it does allow a married mother to do so.


Posted by: cmdicely | Mar 24, 2005 2:37:22 PM

Thanks for the clarification, MY and MW.

Posted by: tango | Mar 24, 2005 3:09:41 PM

"The Freepers seem to be fine with this, btw - they seem to think of domestic-violence laws as unnecessary liberal creations, kinda like hate crimes."

Well, yeah. It's illegal already to beat on people, even if they're perfect strangers. Why do we need special laws to say that it's illegal to beat on your wife? In order to establish that beating on perfect strangers is somehow less serious? Because it somehow is less injurious to have your skull cracked by a tire iron if you don't recognize the person wielding it?

Posted by: Brett Bellmore | Mar 24, 2005 4:18:22 PM

Because it somehow is less injurious to have your skull cracked by a tire iron if you don't recognize the person wielding it?

I would say that there might be a greater need for immediate protective action if your alleged attacker lives in the same home. Since things like the classes of protective orders and other responses that may be issued are controlled by, among other things, what legal category an alleged act falls into, that creates a good reason to have assaults by people who live together a distinct legal category of acts.

And, yeah, I think in many ways it is a greater social harm for people to abuse people when they are in a relationship involving legally recognized and/or practically difficult to restrian power over each others home, property, or, say, healthcare decisions in the event of incapacity. All of which are present in marriage, and some of which are present in any cohabiting relationship.

Posted by: cmdicely | Mar 24, 2005 4:42:41 PM

Why do we need special laws to say that it's illegal to beat on your wife? [...] Because it somehow is less injurious to have your skull cracked by a tire iron if you don't recognize the person wielding it?

Because laws do more than simply declare things illegial. Domestic violence is different than stranger violence in that (1) if violence did indeed occur it is highly likely to recur, and (2) the alleged victim and the alleged attacker have regular contact or even cohabitate. For that reason, domestic violence statues typically lay out procedures for dealing with these problems in timely fashion: standards for issuing a restraining order, procedures for removing the alleged victim to a shelter or giving them rights to the residence, etc. In addition, if there are children involved, then there can be procedures for dealing with them as well.

So there are good reasons for treating domestic violence as a separate kind of crime without taking a stand on the question whether it is a more serious crime than stranger violence.

But I should also note that your suggestion that it is illiberal to think that it is more serious can be reasonably contested. For example, many people would think that violence directed against a child is more reprehensible than violence directed against an adult. This could be argued for, e.g., on moral ground (based on the victim's greater vulnerability or on the general protective obligation than an adult in society has towards a child), or on social-policy grounds (in that it might be useful for society to especially discourage this kind of crime). There are similar arguments to be made in the case of domestic violence.

Posted by: bza | Mar 24, 2005 4:57:13 PM

I see cmdicely made the same points while I was drafting my post. So I hereby revise mine to say: "What cmdicely said."

Posted by: bza | Mar 24, 2005 5:03:15 PM


That seems reasonable to me. Like hate crimes, what we're talking about here is additional penalties for something that's already a crime because of some extraneous circumstances. It's not like domestic violence is now legal in Ohio. It's simply treated like any other incidence of assault and battery. That's fine with me.

And additional penalties go to murdering the President of the USA even though murder is already against the law. So are you are fine with the Federal Government repealing laws which say murdering the President of the USA is illegal? What about the murder of FBI Agents? There are additional penalties for that also even though murder is already illegal. So are you fine with the Federal Government repealing laws which say murdering an FBI agent is illegal?

Posted by: Dan the Man | Mar 24, 2005 6:03:46 PM

Ohio is where AARP brought down USA Next's wrath for opposing this initiative. (It's got gotcha's for cohabiting seniors, too.)

Posted by: RonK, Seattle | Mar 24, 2005 6:35:34 PM

"So are you fine with the Federal Government repealing laws which say murdering an FBI agent is illegal?"

Actually, yes. EVERYONE'S life should be equal before the law. But such laws shouldn't be repealed, properly speaking. They should be struck down on 10th amendment grounds, as the federal government was never delegated the general police authority such laws presume.

Posted by: Brett Bellmore | Mar 24, 2005 7:01:34 PM

They should be struck down on 10th amendment grounds, as the federal government was never delegated the general police authority such laws presume.


Such laws do not presume general police powers; they presume, correctly, that having federal officers empowered to perform tasks Congress has the power to provide in Article I is necessary to those powers, and they presume, I would say also correctly, prohibiting attacks on those officers is "necessary and proper" to effectively carry out those tasks.

Posted by: cmdicely | Mar 24, 2005 7:25:19 PM

No, it's not necessary, because murdering an FBI agent is already illegal under state law, as simply "murder". It's just a way for the federal government to express the sentiment that killing somebody who works for the federal government is somehow worse than killing us lowly peons.

Posted by: Brett Bellmore | Mar 24, 2005 7:44:53 PM

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