Judge in Ohio rules gay marriage ban prohibits some domestic violence charges

CLEVELAND — Domestic violence charges cannot be filed against unmarried people because of Ohio's new constitutional amendment banning gay marriage, a judge ruled today.

Cuyahoga County Common Pleas Judge Stuart Friedman changed a felony domestic violence charge against Frederick Burk to a misdemeanor assault charge.

Prosecutors immediately appealed.

Judges and others across the country have been waiting for a ruling on how the gay marriage ban, among the nation's broadest, would affect Ohio's 25-year-old domestic violence law, which previously wasn't limited to married people.

Burk, 42, is accused of slapping and pushing his live-in girlfriend during a January argument over a pack of cigarettes.

His public defender, David Magee, had asked the judge to throw out the charge because of the new wording in Ohio's constitution that prohibits any state or local law that would "create or recognize a legal status for relationships of unmarried individuals."

Before the amendment, courts applied the domestic violence law by defining a family as including an unmarried couple living together as would a husband and wife, the judge said. The gay marriage amendment no longer allows that.

John Martin, who supervises appeals in the public defender's office, said the office was pleased with the ruling but would not comment further because of the appeal.

Because Burk had a prior domestic violence conviction, the latest charge was a felony that could have resulted in an 18-month jail term; a misdemeanor assault carries a maximum sentence of six months.

"This case is a good example of why we need a domestic violence law. A misdemeanor assault doesn't carry with it a significant enough penalty for repeat domestic violence abusers," said Matt Meyer, an assistant Cuyahoga County prosecutor.

Some opponents of the amendment have said they hope the conflict over the domestic violence law would result in the gay marriage ban being repealed.

Seventeen states have constitutional language defining marriage as between a man and a woman. Ohio's is regarded as the broadest marriage amendment of those passed by 11 states Nov. 2 because it bans civil unions and legal status to all unmarried couples and gay marriages.