As the Republican party attempts to cater to its base by pushing its so-called "Values Agenda" - including bills that cover abortion, cloning, religious freedom - it is once again ginning up the crusade to pass a constitutional amendment banning same-sex marriages. But in the process, Republicans are leading an assault on victims of domestic violence and making it easier for batterers to go free.
Today, the House will vote on the Federal Marriage Amendment. The purpose of this constitutional amendment is to marginalize groups of citizens while energizing Republican votes this November. The FMA provides not only that any marriage must be between one man and one woman but also prohibits the federal and all state governments from conferring the legal incidents of marriage on any other type of union.
Although the marriage debate has centered around same-sex marriages, one enormous consequence of the constitutional amendment that is not well-publicized is the effect it would have on Federal and state domestic violence laws. In January, Congress passed and the President signed into law the Violence Against Women Act of 2005 (VAWA). Among other things, this Act criminalizes acts of interstate domestic violence and funds domestic violence programs nationwide.
In addition to VAWA, every state has domestic violence laws, some of which make it a crime to commit an act of violence against a spouse, a former spouse, a person "living as a spouse," or a person "similarly situated to a spouse." "Living as a spouse" and "similarly situated to a spouse" are almost uniformly interpreted to include live-in boyfriends and girlfriends, as the laws recognize that it is the relationship - not legal status of the couple - that merits a more severe crime being charged. The same holds true for state laws providing for civil protection orders - many allow domestic partners, whether married or not, to seek a protection order in the face of threatened violence.
These protections for victims of domestic violence that VAWA and the states have provided will be placed in jeopardy if the Republicans succeed in passing the Federal Marriage Amendment.
One needs to look no further than Ohio for proof of this prospect. In November 2004, Ohio passed a constitutional marriage amendment similar to the one being considered in the House. Ohio's constitutional amendment states that marriages may only occur between one man and one woman, and it makes clear that no other relationships of unmarried individuals will be recognized in the law.
In the wake of the constitutional amendment, several trial courts in Ohio, as well as two of its appellate courts, have held that because of Ohio's marriage amendment, the state domestic violence laws are unconstitutional as applied to unmarried domestic violence victims. In some cases, batterers have been let out of jail and have had felony convictions overturned because the batterer and victim were not married. Ohio courts have even stated that convicting an abuser for violating a civil protection order is now unconstitutional.
Ohio is not the only state in jeopardy of stripping protections from victims of domestic violence. Utah has enacted a marriage amendment that refuses to legally recognize any domestic union other than that between a man and a woman and refuses to give such unions the same or substantially equivalent legal effect. In addition, this fall, Virginians will vote on a marriage amendment that bans all forms of legal recognition of domestic partnerships that "approximate marriage." If the Federal Marriage amendment is enacted, the problem becomes nationwide, and so does the threat to victims of domestic violence.
Properly understood, the Republicans' "Values Agenda" means anti-civil rights, anti-choice, anti-health care, anti-free speech, and, apparently, pro-batterer. Fortunately, the marriage amendment failed in the Senate and likely will fail again in the House.