North Carolina has long recognized that domestic violence victims deserve protection whether or not they are married to their abusers and have made sure that domestic violence laws cover unmarried victims—but those protections may conflict with the proposed constitutional amendment’s prohibitions.
In fact, it’s crucial to understand that the Amendment threatens domestic violence protections for all unmarried couples. The Amendment will harm victims of domestic violence, threatening North Carolina’s current domestic violence laws.
- If the Amendment is passed, the application of North Carolina’s domestic violence laws themselves will be left open for question—threatening our state’s victims of domestic violence.
- Additionally, the work done by numerous state agencies relying upon current domestic violence laws will be thrown into flux, and the protections and resources afforded to North Carolinians in abusive relationships could be seriously and dangerously eroded.
- If the Amendment passes, the protections to members of unmarried couples may be rendered unconstitutional as witnessed in Ohio following passage of an amendment less restrictive than that being considered in North Carolina.
- Ohio passed a marriage amendment in 2004. Its language is narrower than North Carolina’s proposed constitutional amendment and it was passed for the same reason – to prohibit same sex marriage.
- Seven Ohio state trial courts and two appellate courts, in at least 27 cases, construed the language of the Ohio marriage amendment broadly, holding its state’s domestic violence statute unconstitutional because it protected unmarried cohabitants.
- This means that dozens of batterers were able to walk free and their victims of domestic violence are living in fear because of an amendment that was even less restrictive than the one currently being proposed in North Carolina.
North Carolina’s amendment-related domestic violence protection problems could be worse than those experienced in Ohio.
- Although Ohio’s is the first amendment to be litigated extensively, it is just a harbinger of problems that would be created in North Carolina.
- Because the language of North Carolina’s Amendment is more restrictive than the amendment in Ohio, the same set of unintended consequences are likely to imperil the safety of thousands of victims of intimate partner violence if it is enacted.
- North Carolina clearly did not intend to treat victims of domestic violence differently on the basis of their marital status. However, if passed, our state’s anti-gay constitutional amendment could have the same impact as the Ohio Marriage Amendment: It could undo much of the progress that the state legislature has made in giving prosecutors the tools needed to hold batterers fully accountable.
A conflict between Amendment and domestic violence laws would mean that some batterers get out of jail free.
- In Ohio, a state with a marriage amendment less restrictive than that proposed in North Carolina, meant that some batterers were set free.
- Dallas McKinley was convicted of a felony because he had hit, pushed, and thrown things at his girlfriend while he was on a drinking binge – but he got the conviction overturned because they weren’t married.
- Donald Steineman was originally convicted of two felony counts after abusing his live-in girlfriend and three year-old adopted son. The court could ultimately uphold his conviction for abusing his son but had to overturn the conviction for abusing his girlfriend.
- David McIntosh had been sentenced to a year in prison after violating a protective order and beating his girlfriend; he successfully got the conviction and sentence overturned.
The Amendment could mean that unmarried domestic violence victims could have their protective orders deemed unenforceable.
- Under Ohio’s constitutional amendment, some courts have held that convicting an abuser for violating a civil protective order is also unconstitutional.
- In Virginia, where a similar amendment was considered (and eventually passed), domestic violence programs were frantically trying to come up with ways to get more victims into shelters because they wouldn’t have the same access to protective orders as they did before the amendment. This means more money spent on sheltering victims while their abusers are allowed to stay in their homes.
Courts cannot apply these types of constitutional amendments without the unintended repeal of domestic violence laws and impact to domestic violence cases.
- North Carolina Courts will not be able to make a choice as to whether to apply the anti-gay constitutional amendment to domestic violence scenarios. A constitution, whether federal or state, is supreme law. If a court thinks that there is a conflict, the Constitution controls and the court will limit the reach of statutes accordingly.
- The Amendment would create a conflict between domestic violence laws, and the state constitution. Since the amendment would rewrite the Constitution, it would trump statutory protections, potentially undoing all the work that the General Assembly have done to protect domestic violence victims.
The General Assembly cannot simply pass a law to fix the Amendment.
- State legislatures cannot fix a constitutional amendment by themselves. Constitutional provisions are not like statutes – they cannot be addressed by legislatures acting alone. Instead, a legislature must follow extensive rules, costing time, effort and resources.
- Enshrining discrimination in the Constitution is not only wrong, it is incredibly difficult to fix. The anti-gay amendment would be the first time that the General Assembly has amended the constitution in order to discriminate against specific individuals, flying in the face of the state’s tradition of amending the constitution to increase equality.
- Whatever position one takes on same-sex marriage, the Ohio story shows the very real danger that comes from using constitutional amendments to limit rights.
Every new attempt to pass the Amendment puts more domestic violence victims at risk.
- In Ohio, the marriage amendment let batterers out of jail. In other states, the same arguments have been used to do the same. Passing the Amendment would multiply exponentially the number of domestic violence survivors whose rights and safety are jeopardized.
- In North Carolina, the potential unconstitutionality of current domestic violence laws as a result of the anti-gay amendment will mean uneven application and uncertainty among numerous judicial districts and state agencies and fewer protections to those already vulnerable as well as an enormous waste of state resources.
