Judge: Ohio Gay Marriage Ban Affects Law

Judge: Ohio Gay Marriage Ban Affects Law (AP)

Domestic violence charges cannot be filed against unmarried people because of Ohio’s new constitutional amendment banning gay marriage, a judge ruled Wednesday Cuyahoga County Common Pleas Judge Stuart Friedman changed a felony domestic violence charge against Frederick Burk to a misdemeanor assault charge. Prosecutors immediately appealed.

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. Burk, 42, is accused of slapping and pushing his live-in girlfriend during a January argument over a pack of cigarettes.
His public defender, David Magee, had asked the judge to throw out the charge because of the new wording in Ohio’s constitution that prohibits any state or local law that would “create or recognize a legal status for relationships of unmarried individuals.” 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.

John Martin, who supervises appeals in the public defender’s office, said the office was pleased with the ruling but would not comment further because of the appeal.

Because Burk had a prior domestic violence conviction, the latest charge was a felony that could have resulted in an 18-month jail term; a misdemeanor assault carries a maximum sentence of six months. “This case is a good example of why we need a domestic violence law. A misdemeanor assault doesn’t carry with it a significant enough penalty for repeat domestic violence abusers,” said Matt Meyer, an assistant Cuyahoga County prosecutor.

Some opponents of the amendment have said they hope the conflict over the domestic violence law would result in the gay marriage ban being repealed. Seventeen states have constitutional language defining marriage as between a man and a woman. Ohio’s is regarded as the broadest marriage amendment of those passed by 11 states Nov. 2 because it bans civil unions and legal status to all unmarried couples and gay marriages.

Interesting. While this is obviously an unintended consequence of the law, it strikes me as a good one. Why should pushing someone be treated differently based on one’s living arrangements? Is pushing one’s girlfriend who maintains a separate appartment less problematic?

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James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Michael says:

    And if you push or punch your wife, it should be treated the same too?

  2. Alex Knapp says:

    Because if you live in a separate home, you can go there to get away. You shouldn’t have to be afraid to go home.

  3. Just Me says:

    You can’t convince me there aren’t any laws against assault in the state of Ohio. Seems to me those would fit pretty well.

  4. James Joyner says:

    Michael: Assault is assault. If the penalties for assault are insufficient, then raise them.

    Alex: But you shouldn’t have to be afraid to go anywhere you’re legally entitled to be.

  5. karin says:

    Here we go. First off, I cannot believe we are allowing a ban on gay marriage. It boils down to what I believe and what YOU believe marriage or unions entails. Why is the government STILL in our bedrooms? Personally I resent the fact if I so desired to be a prostitute, I cannot for fear of being arrested. It is MY body etc, etc. I am so over the government intrusion. And since when is it ok to beat the crap out of ANYONE, no matter what? Dang,,,we treat our animals better.

  6. Just Me says:

    But bans on gay marriage have little to do with domestive violence laws.

    If gay couples aren’t protected in regards to domestive violence laws, then neither are couples that are living together. And in any case, there are always assault laws at work, and I would almost be willing to bet that people convicted of domestic violence charges probably get lighter sentences than those convicted of similar assault charges (but I have no proof, just what I suspect).

  7. Attila Girl says:

    There is a fundamental difference between violence inside one’s home and violence outside one’s home.

    The distinction, James, is that you are not legally entitled to be at your girlfriend’s apartment if she doesn’t let you in. You are legally entitled to be in your own home.

    The practical difference is that when you live with someone he/she has an enormous amount of power over you. If he/she abuses that extraordinary power, you truly have nowhere else to turn.