Protect marriage, and endanger who?
Some states, responding to the encroachment of gays and lesbians into the field of marriage, passed limited provisions, simply defining marriage as a legal relationship between 1 man and 1 woman. Others, like Ohio, and potentially, Indiana, chose much broader provisions, not only limiting who can marriage, but also preventing the state from granting the benefits of marriage to unmarried couples, supposedly to prevent the state from having to recognize marriage substitutes like civil unions.
The problem, pointed out by many critics, is that these broad provisions may take away existing protections for unmarried couples. This is a good example:
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.
. . . .
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.
Link.
Indiana’s proposed constitutional amendment on the subject reads as follows:
Section 38.
(a) Marriage in Indiana consists only of the union of one man and one woman.
(b) This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.
Link.
The trouble with this provision is that the term “legal incidents of marriage” is not defined, nor is it spelled out anywhere in state law. So would protection from domestic abuse be a legal incident of marriage, taking away protections for those living out of wedlock? Is the right of a child to support from his parent a “legal incident of marriage?” When this provision passes, I predict that we attorneys will be having fun.
