Defense of Marriage in Virginia

[Blaster_Master]

@monica

Let’s say that Bob and Sue had, for whatever reason, never wanted to get married, but they have a civil union. There are some companies (I believe the Sallie May Foundation is one of them, but I’m not positive) that do give benefits to their employee’s partner in a relationship like that. These places would no longer be allowed to do so, so they might actually move to another state.

This is not true. Regardless of whether this amendment passes or not, civil unions have already been banned in Virginia as of 2004. This is based on ignorance of existing law. This amendment will “merely” turn an existing act into state constitution.

Now, let’s talk about Dave and Alice, who are not married but living together and have been doing so for many years. If Dave physically abuses Alice, it would not be domestic violence, it would be battery, which is a lesser charge. Thus, Dave would face fewer penalties for beating up the woman he’s been living with for years than he would have had they been married. Unless you’re married or related to a person, legally, you’d beconsidered no more than strangers on the street.

This is also not true, according to Virginia Code 18.2-57.2, Virginia defines what most states call domestic violence as “assault and battery against a family or househould member”. A “family or household member” is defined in Virginia Code 16.1-228 which includes, among the obvious family and spouse, “any individual who cohabits or who, within 12 months, cohabited with the person”. Thus, this law seems to apply equally to abusing a spouse, a live-in girlfriend, a roommate, or a live-in homosexual partner. Hence, this amendment will have no affect on this law.

[Bricker]

@monica

Now, let’s talk about Dave and Alice, who are not married but living together and have been doing so for many years. If Dave physically abuses Alice, it would not be domestic violence, it would be battery, which is a lesser charge. Thus, Dave would face fewer penalties for beating up the woman he’s been living with for years than he would have had they been married. Unless you’re married or related to a person, legally, you’d beconsidered no more than strangers on the street.

That’s absolutely untrue.

I find it at least a little disturbing that some people – including whoever crafted this scenario for you – believes that it’s appropriate to use misrepresentation to defeat this initiative.

[Steve_MB]

@Blaster Master

This is also not true, according to Virginia Code 18.2-57.2, Virginia defines what most states call domestic violence as “assault and battery against a family or househould member”. A “family or household member” is defined in Virginia Code 16.1-228 which includes, among the obvious family and spouse, **“any individual who cohabits or who, within 12 months, cohabited with the person”. ** Thus, this law seems to apply equally to abusing a spouse, a live-in girlfriend, a roommate, or a live-in homosexual partner. Hence, this amendment will have no affect on this law.

The bolded part is othewise known as “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage”, and goes away (Constitution trumps Statute).

[Bricker]

@Steve MB

The bolded part is othewise known as “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage”, and goes away (Constitution trumps Statute).

No.

What is your cite for the proposition that any court would interpret that language as you suggest?

[Steve_MB]

@Bricker

That’s absolutely untrue.

I find it at least a little disturbing that some people – including whoever crafted this scenario for you – believes that it’s appropriate to use misrepresentation to defeat this initiative.

Hokay, let’s use cites, instead…

[Blaster_Master]

@Quartz

Steven den Beste has written an interesting article on this.

That is a good article, and much along my thoughts. I think he’s right, in that I’d rather see a bill I don’t approve of pass through the normal means, because then the fight can always be taken up again to change it, than something of which I do approve being forced through in a way that causes sore losers. Its like winning a football game because of a botched call… sure, I’m glad my team won, but did they really deserve it? We’ll never know.

In a backwards way, this is a compelling reason to vote FOR the amendment, not because I support it, but sort of a way of showing disapproval for judicial activism, which is clearly the entire point of this amendment. So now we end up in a lose-lose situation: we vote it down and we support judicial activism, we vote it into law and we support conditional rights.

[Steve_MB]

@Bricker

What is your cite for the proposition that any court would interpret that language as you suggest?

Well, at this point, that would be a request for an additional cite. As you wish.

[Bricker]

@Steve MB

Hokay, let’s use cites, instead…

And from your own cite, we learn that although lower courts made such rulings, they were oveturned on appeal:

These appellate courts have both determined that unmarried couples are still entitled to protection under domestic violence laws…

So the law in Ohio is that Ohio’s unmarried couples, same-sex or otherwise, are still entitled to protection under domestic violence laws.

Right?

[Steve_MB]

@Bricker

And from your own cite, we learn that although lower courts made such rulings, they were oveturned on appeal:

So the law in Ohio is that Ohio’s unmarried couples, same-sex or otherwise, are still entitled to protection under domestic violence laws.

Right?

Just to confirm before proceeding: I take it that you are formally back-tracking on your original question (“What is your cite for the proposition that any court would interpret that language as you suggest?”)…?

[Bricker]

@Steve MB

Well, at this point, that would be a request for an additional cite. As you wish.

Before I go hunting it down – are you claiming that March decision was upheld on appeal? Or am I going to find an appeals court decision reversing it?

[Blaster_Master]

@Steve MB

Hokay, let’s use cites, instead…

I think this cite is misleading, they’re using the Ohio decision to approximate how Virginia will react; however, our domestic violence laws are defined differently. I really don’t see how anyone could interpret “any individual who cohabits” as anything other than someone living with you, regardless of marriage status. If I’m living with a roommate, and I beat him up, would they deny domestic violence because my roommate and I intend to approximate the design, qualities, significance, or effects of marriage?

[Bricker]

@Steve MB

Just to confirm before proceeding: I take it that you are formally back-tracking on your original question (“What is your cite for the proposition that any court would interpret that language as you suggest?”)…?

OK.

Listen, in a country where we can cite judge being punished because he was using a penis pump during trials, I am unwilling to say that no court would do something utterly crazy and outside the bounds of law. My use of the phrase “any court” was shorthand for “any state court able to issue precedential rulings” – the only kind of court rulings that serve to establish and define law. This is reasonable, since we are discussing what the law will be as a result of this amendment.

However, I concede that the language I used did not make that clear at all. I apologize for the confusion, and modify my assertion accordingly.

[Caffeine.addict]

Like, Bricker I don’t interpret it to mean that domestic abuse or as the statute calls it assault and battery against a household member will be affected. However, Judges are known to do weird things. I could conceivably see a case like this getting in front of the Virginia Supreme Court.

However, this part is interesting,

"This Commonwealth 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 effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”

One of the arguments that I have heard is that this could be used to challenge wills, advance medical directives and powers of attorney. Is there some other language that would do so? I could maybe see an argument based on the wording which states “or recognize a legal status for relationships of unmarried individuals” which one could use to challenge a will, power of attorney, etc. but it doesn’t to me like that would apply.

In any case, this amendment seems utterly silly. I think that putting this in the State Constitution is pointless even for the conservatives who believe in marriage being between a man and a woman. I’ve seen nothing to ever indicate that the Virginia Supreme Court would ever make a ruling that the Constitution of Virginia would require gay marriages to be recognized. This is too conservative a state in that regard. The judges in Virginia in my experience tend to be fairly conservative in their rulings. Maybe Bricker sees things differently.

If I still lived in VA, I would vote against this because I believe that at this point in time, we should allow homosexuals the same right to get married and divorced that the rest of us enjoy.

[Steve_MB]

@Bricker

Before I go hunting it down – are you claiming that March decision was upheld on appeal? Or am I going to find an appeals court decision reversing it?

From the first paragraph of the cite:

County prosecutors in Dayton, Ohio are now prohibited from enforcing the state’s domestic violence laws if the involved parties are not married. The appeals court for the 2nd District finds that such enforcement is in conflict with Ohio’s 2004 constitutional amendment banning the recognition of unmarried relationships. That amendment is strikingly similar to one that will be on the ballot in Virginia in November.

The cite is a reference to an appeal. The matter is still an open can of worms with conflicting rulings at the appellate level:

But opponents at the news conference said that the Ohio case suggests that lawyers will nonetheless use the amendment to help shield clients from a tougher domestic violence charge and potentially tie up the courts. And they point out that supporters of the amendment in Ohio are now supporting [defendant] Carswell’s argument in court, suggesting they knew all along that this would be the effect.
“It’s going to be a problem [for Virginia] because someone is going to raise it and someone will look at what Ohio has done and defense lawyers across the country will have no choice but to raise that challenge,” said Alexandria Ruden, a staff attorney for the Legal Aid Society of Cleveland. She said such laws have been suspended in 10 counties in Ohio as the legal wrangling continues.

[Steve_MB]

@Blaster Master

If I’m living with a roommate, and I beat him up, would they deny domestic violence because my roommate and I intend to approximate the design, qualities, significance, or effects of marriage?

Who knows? The current mess in Ohio indicates that it’s luck of the judicial draw, at least insofar as how many layers of process you need to plow through to get justice.

I see no merit whatsoever to opening the same can of worms in Virginia.

[Bricker]

@Steve MB

Who knows? The current mess in Ohio indicates that it’s luck of the judicial draw, at least insofar as how many layers of process you need to plow through to get justice.

I see no merit whatsoever to opening the same can of worms in Virginia.

Do you have a good-faith belief that the ultimate result of the passage of the marriage amendment in Virginia will be the loss, as a matter of law, of the protections of Virginia Code 18.2-57.2, for unmarried family or household members as defined in Virginia Code 16.1-228?

[Steve_MB]

@Bricker

Do you have a good-faith belief that the ultimate result of the passage of the marriage amendment in Virginia will be the loss, as a matter of law, of the protections of Virginia Code 18.2-57.2, for unmarried family or household members as defined in Virginia Code 16.1-228?

I consider it a matter of established fact, based on what happened in Ohio, that many victims of domestic violence would (at best) find it necessary to go through an extra wringer to obtain those protections or (at worst) be denied them altogether.

Even the former is unacceptable, given that it would be inflicted as a side effect of an unnecessary measure to ward off a nonexistent problem.

[Blaster_Master]

As a matter of priniciple, I looked up the law as it is in the Ohio code. Domestic violence is defined in §2919.25. The relevant portions are as follows:

@Ohio Code §2919.25

(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.

(F) As used in this section and sections 2919.251 [2919.25.1] and 2919.26 of the Revised Code:

(1) “Family or household member” means any of the following:

(a) Any of the following who is residing or has resided with the offender:

(i) A spouse, a person living as a spouse, or a former spouse of the offender;

(ii) A parent or a child of the offender, or another person related by consanguinity or affinity to the offender;

(iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.

(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.

(2) “Person living as a spouse” means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.

(Bolding mine)
This is clearly different from the Virginia law, as this is not nearly as broad of a definition. Clearly, the conflict with the Ohio law comes with with the use of the phrase “Person living as a spouse”. This, in my opinion, makes this case irrelevant to Virginia because their definition is significantly narrower.

[Steve_MB]

@Blaster Master

As a matter of priniciple, I looked up the law as it is in the Ohio code. Domestic violence is defined in §2919.25. The relevant portions are as follows:
(Bolding mine)
This is clearly different from the Virginia law, as this is not nearly as broad of a definition. Clearly, the conflict with the Ohio law comes with with the use of the phrase “Person living as a spouse”. This, in my opinion, makes this case irrelevant to Virginia because their definition is significantly narrower.

If that were the only problem, the court would need to look no farther than the “…or another person related by consanguinity or affinity to the offender” to toss out the defense. At least some of the original and appeals courts didn’t find it so simple; ergo, the can of worms remains.

I don’t see any need to open it in Virginia.

[Blaster_Master]

@Steve MB

If that were the only problem, the court would need to look no farther than the “…or another person related by consanguinity or affinity to the offender” to toss out the defense. At least some of the original and appeals courts didn’t find it so simple; ergo, the can of worms remains.

I don’t see any need to open it in Virginia.

I think the relevant definition for “affinity” here is intended to mean “in-law” as from the definition on Merriam-Webster Online (relationship by marriage). That is, in the context of consanguinity, and all the other family-esque words in that clause, that what they mean by "consanguinity or affinity is “related by blood or by marriage”. In fact, if you look on dictionary.com, they actually cross reference affinity and consanguinity in precisely that manner.

Now, granted, I don’t like the idea of openning a can of worms in VA, but I doubt that would happen for two reasons. First, because Virginia is decidedly more conservative. Second, the relevant laws are decidedly less ambiguous.