Alablawg

Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Wednesday, May 31, 2006

Unintended Consequences

The Decatur Daily asks today whether Alabama's new anti-gay people amendment will unintentionally undermine domestic violence prosecutions. That was the result when Ohio decided to write homophobia into its constitution. In this decision, an Ohio Appellate Court held that the amendment prohibited prosecuting non-married people for domestic violence.

Ohio's condemnatory Amendment states:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state 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 effect of marriage

The Domestic Violence statute protected anyone "living as a spouse." The statute defined "person living as a spouse" as:

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.

The court held that this expansive definition created a "legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." The defendant and the victim were not legally married; they were quasi-spouses. The victim in the case was protected soley by virtue of being a quasi-spouse. Because the amendment prohibited treating quasi-spouses like spouses, the amendment prohibited the domestic violence prosecution.

Here is Alabama's proposed gay-people-are-gross amendment:

No marriage license shall be issued in Alabama to parties of the same sex and that the state shall not recognize a marriage of parties of the same sex that occurred as a result of the law of any other jurisdiction

This ignorance is already codified at Section 30-1-19 of the Alabama Code:

(a)This section shall be known and may be cited as the "Alabama Marriage Protection Act."

(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.

(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.

(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.

(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.

You can already see that Alabama's hostility towards gay people will not affect our domestic violence laws. The key to the Ohio decision was the prohibition of any legal status for quasi-marriages. Because the domestic violence statute protected quasi-marriages, it violated the amendment. Alabama, to its credit, does not go so far. All we prohibit is gay marriage itself. There is no ban on creating legal relationships similar to marriage. Hence, it does not matter whether or not Alabama's domestic violence law grants quasi-marital status to non-married people.

No, the only result of our soon to be enacted amendment is the intended one: Letting gay people know we do not want them around. The sponsor of the Amendment, Sen. Hinton Mitchem, D-Albertville, puts it best:

"I do not wear my religion on my sleeve," Mitchem said. "I [introduced the amendment] after a trip to San Francisco where I saw a black man and a white woman two men on television in a public place kissing deeply. I do not think it is appropriate for children to grow up in a home where they see that."

Right. The law has no higher purpose than preventing public displays of affection.