February 18, 2005

Judge punts on Issue 1 and home violence

Ban amendment might affect law, but it took effect too late for this case

by Eric Resnick

Cleveland--A judge who was expected to rule if the Ohio Constitution�s new marriage ban amendment ends domestic violence protection for unmarried couples �punted� the matter in a surprise opinion February 11.

Cuyahoga County Common Pleas judge Stuart Friedman denied Darnell Forte�s motion to dismiss his domestic violence charges on a technicality, while declining to rule on the constitutional issue.

The ruling came a week early, and as a surprise to both sides of the dispute.

The case is the first of 10 to 20 cases in Cuyahoga County and another half-dozen throughout the state where the defense has asked that domestic violence charges be dismissed because the couple is not married.

The marriage ban amendment was passed by voters in November as Issue 1, and is now Article 15, Section 11 of the Ohio Constitution. Its second sentence goes beyond marriage to read: �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.�

During the Issue 1 campaign, domestic violence advocates warned that this could be used to void the domestic violence law when the perpetrator and victim are not married. It presently covers unmarried couples, including same-sex ones.

Legal advocates, including the ACLU of Ohio, consider this a test of how broadly or narrowly the amendment will be interpreted. The ACLU filed a friend-of-the-court brief on behalf of the state saying that the voters of Ohio never intended the ban to affect the domestic violence laws.

Friedman denied the motion to dismiss the domestic violence charges only because the alleged incident took place in August, months before the amendment took effect December 2.

Though Forte was indicted December 15, after it took effect, Friedman said the case must be governed by the law at the time of the alleged offense.

Forte�s attorney David Magee said he doesn�t agree with that analysis, arguing that the charges were filed after the amendment took effect, and that it should apply to his client.

But Friedman agreed with Magee that the amendment may limit the domestic violence law, even though it didn�t apply in this case.

Friedman said the arguments put forth by the state and the ACLU that the marriage ban amendment �simply defines the legal scope of marriage in Ohio� are �overly simplistic and ultimately unconvincing.�

�This court shares the concern that persons living together as household members--whether married or unmarried, and whether in same-sex or opposite-sex relationships, should be protected against violence committed by their partners,� wrote Friedman.

Friedman concluded, �The dire consequences of any potential conflict between Issue 1 and the domestic violence laws could be obviated by the General Assembly simply by amending the definitions in those laws; however, it is far beyond the jurisdiction of this court to suggest specific language for addressing this issue.�

Friedman later told the Gay People�s Chronicle that the matter of the crime occurring prior to the amendment was addressed with the attorneys before the January 27 hearing.

�If I hadn�t addressed it,� said Friedman, �the losing party would have appealed the case and I would have been reversed. The Court of Appeals would have said it was improper to rule on the merits because it wasn�t ripe.�

Friedman added that new domestic violence cases come to the court every day, and one occurring after the amendment will inevitably come along.

�The domestic violence statute is fine,� said Cathleen Alexander, director of Cleveland�s Domestic Violence Center. �The problem is the amendment.�

�When you start restricting rights, you open Pandora�s box,� she said, adding that domestic violence is �just the tip of the iceberg� of what the amendment could affect. �If the answer in each is to change the statute, then no one will look at the root of the problem, which is the amendment.�

One case is already dismissed

Ohio Domestic Violence Network director Nancy Neylon agreed that it is the amendment which is causing the problems with the law.

The number of dismissal motions under the amendment continues to grow, said Neylon, who is tracking similar cases around the state.

Neylon knew of a Licking County case where the judge dismissed the domestic violence charges without a hearing, though she had no further details. She also knew of motions filed in Montgomery and Hancock Counties earlier in the week.

Cleveland Municipal Court Judge Pauline Tarver followed Friedman�s lead and similarly denied a defendant�s motion to dismiss February 15.

In that case, like Forte�s the alleged crime occurred before the amendment took effect, in October.

Forte�s trial is scheduled for February 18. Magee said he needs to see what the outcome of the trial is before deciding whether or not to appeal Friedman�s decision.

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