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NC Law Professor: Amendment One Supporters ‘Completely Miss The Point’ On Domestic Violence Protections

May 03, 2012 12:50 pm ET by Carlos Maza

A second North Carolina family law professor has responded to Vote for Marriage NC’s latest effort to downplay legal concerns about the state’s proposed anti-gay marriage amendment and its impact on domestic violence protections.

On Tuesday, Vote for Marriage NC touted a statement from “a coalition of District Attorneys, legal professionals, and other law enforcement officials” which attempted to respond to reports that the overly-broad wording of the amendment would invalidate domestic violence protections for unmarried women. Earlier today, the group released a television ad promoting the statement and condemning opponents of the amendment for allegedly misleading voters:

According to Wake Forest University law professor Suzanne Reynolds, however, Vote for Marriage NC’s latest statement “completely misses the point.” In an email to Equality Matters Wednesday, Reynolds – who specializes in family law and is the co-founder of the Domestic Violence Advocacy Center of Forsyth County – wrote:

The statement issued on May 1 correctly points out that that the law of domestic violence currently protects both married and unmarried couples who live in the same household. Pointing out what the law does now, however, completely misses the point. What I am afraid of occurs only if Amendment One passes.

Unlike other law protecting us from criminal conduct, domestic violence law requires that the victim and batterer have a “personal relationship.” We learned by tragic experience in this country and state that the more general law of assault and battery simply is inadequate to address the very different threat of violence in the home. Before someone is entitled to the extraordinary relief that the law of domestic violence provides, however, the victim must have a “personal relationship” with the batterer. Currently in North Carolina, a victim may invoke the law of domestic violence for her protection even if that “personal relationship” is an unmarried relationship – between persons of the same or different sexes.

But if Amendment One passes, the state constitution ties the state’s hands: the state will be constitutionally forbidden from recognizing an unmarried relationship as a valid “domestic legal union.” If a batterer lives with his victim – of the same or different sex – he will surely argue that the victim lives in a domestic union that the state constitution declares is no longer legal. Consequently, she must rely on the law of assault and battery – law that we already know is inadequate to the special vulnerability of someone who is battered in the home.

Why am I so certain that batterers will raise these arguments? Because in states with marriage-related amendments, they already have. The domestic violence laws of these other states, like the current domestic violence law of North Carolina, protected persons who were unmarried. But after the state passed a marriage-related amendment, batterers argued that the amendment restricted domestic violence protection to married victims and batterers.

Eventually the appellate courts of both states concluded that the wording of the constitutional amendments did not prevent the state from continuing to use domestic violence law to protect victims in unmarried relationships. But, both of those amendments were much narrower than the breathtakingly broad Amendment One. In both states, the marriage-related amendments restricted the state only from creating a status that approximated marriage.

That is not what Amendment One does. Amendment One tells the state of North Carolina that no domestic union except marriage is legal or valid. Perhaps the leadership of Amendment One wishes that it had not proposed an amendment with such far-reaching potential consequences. But that’s the Amendment on the ballot.

If the group that spoke on May 1 thinks that the claim I just described is false, let me explain that family law professors at every law school in the state agree with me. I respect the group who spoke on May 1, but their job is different from the job of a family law professor. The job of family law professors includes speaking up when laws pose unintended harm to the family. And for family law professors, no matter how a person’s family came into being, all members of that family deserve the most effective law the state can provide to keep them from being beaten.

In the experience of other states, eventually the appellate courts determined that the marriage-related amendment allowed the state to continue to use its law of domestic violence for victims in unmarried relationships. If Amendment One forces the issue, I will certainly argue that our much broader amendment nevertheless allows the state to continue to recognize unmarried relationships as “valid” for purposes of domestic violence protection. But I don’t know if that argument will prevail, and with all due respect, neither does the group that appeared on May 1. At a minimum, we can expect that the law will be unclear for a period of time, a period of time during which victims of domestic violence will be at greater risk. I’m not willing to tolerate that risk, and I hope a majority of the voters of North Carolina aren’t either. [emphasis added]

Reynolds’ comments are in line with those made by University of North Carolina law professor Maxine Eichner, who yesterday explained that, because of Amendment One’s broad wording, North Carolina’s domestic violence protections for unmarried partners “would be struck down,” even if state courts “applied the same rationale” as other states with marriage amendments.

Family law experts from every law school in the state have raised similar concerns about the amendment’s potential impact on domestic violence laws.

Previously:

NC Law Professor Corrects The Record: Amendment One Could 'Invalidate' Domestic Violence Protections

“Too Far”: Experts, Conservatives Condemn North Carolina’s Anti-Gay Marriage Amendment

Meet The “Legal Experts” Supporting North Carolina’s Anti-Gay Marriage Amendment