Assault Ambiguity

Marriage bans and domestic abuse.


Ohio law clerk Jeff Lazarus was just trying to defend a client when he stumbled on a glaring loophole in Ohio's domestic violence laws–and provoked an attack on the state's new same-sex marriage ban. Frederick Burk, 42, was accused of slapping his live-in girlfriend in an argument over a pack of cigarettes. Lazarus, a third-year law student at Case Western University, reasoned that the definition of marriage enshrined by a 2004 ballot initiative known as Issue 1 precluded Burk's girlfriend from charging him under the state's domestic violence law.

Burk's public defender, David Magee, asked the judge to dismiss the charge because Ohio's newest constitutional amendment prohibits any state law that would "create or recognize a legal status for relationships of unmarried individuals." As Burk wasn't married to his accuser, the judge downgraded Burk's crime from a felony to a misdemeanor. Carrie Davis, staff attorney at the Ohio ACLU, says the case has prompted at least four more challenges to domestic abuse cases in Ohio.

The issue of whether the same-sex marriage ban guts the state's domestic violence law is now working its way up the state's courts. "It's possible that the Ohio Supreme Court will decide that this doesn't affect domestic violence law, but I don't really see how they could reach that conclusion without ignoring the language of Issue 1," says Lewis Katz, a law professor at Ohio's Case Western Reserve University.

Ohio isn't the only state whose same-sex marriage ban has had unintended consequences. Michigan's attorney general recently ruled that the state's law against gay marriage prohibits public employers from offering health benefits to homosexual partners. Gov. Jennifer Granholm has announced that a "legal cloud" is hovering, and benefits for some employees and families are being withheld pending a judicial decision on whether the law's language precludes them.

Lazarus, the law student who discovered the Ohio loophole, says he has no political agenda, but "the law does have unintended consequences….Politicans have been saying this wasn't what Ohio voters intended with Issue 1. If they really believe that, we should take a second look at it."