http://news.enquirer.com/apps/pbcs.dll/article?AID=2005503240351

CLEVELAND - Domestic violence charges cannot be filed against unmarried
people because of Ohio's recently enacted definition of marriage, a judge
ruled Wednesday.

Cuyahoga County Common Pleas Judge Stuart Friedman changed a felony domestic
violence charge against Frederick Burk to a misdemeanor assault charge
because of the state's constitutional amendment banning gay marriage.

Judges and others have been waiting for a ruling on how the gay marriage ban
would affect Ohio's 25-year-old domestic violence law, which has not been
limited to married people.

Friedman's ruling is the first high-profile one in the state among several
similar requests to overturn domestic violence charges. Prosecutors
immediately appealed.

Friedman said the ruling applies specifically to this case, but advocates
said they believe appeals likely will reach the state Supreme Court.

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

Burk's public defender, David Magee, had asked the judge to throw out the
domestic violence charge because Ohio's constitution 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. Now courts can't do that because of the gay
marriage amendment, Friedman wrote.

"By mandating that the State deny any legal recognition 'that intends to
approximate the design, significance or effect of marriage' to relationships
between unmarried individuals, the Ohio Constitution now appears to threaten
the limited protections previously available to them by law," he wrote.

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 which could result in an 18-month jail term and a $5,000 fine. A
misdemeanor assault conviction carries a maximum sentence of six months and
a $1,000 fine.

"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.

The American Civil Liberties Union of Ohio and advocates for victims say a
victim can get quick protective orders under domestic violence laws, but
cannot if the charge is assault.

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.

Phil Burress, president of Citizens for Community Values and chairman of the
Ohio Campaign to Protect Marriage, said the problem isn't with the
amendment, but with the criminal law that he said should be changed to apply
to anyone, regardless of marital status. His group was key in pushing the
amendment, which won 62 percent of the vote in November.

"If anyone beats another person, whether it's on the street or in the home,
they need to be treated the same," Burress said.

Nancy Neylon, executive director of Ohio Domestic Violence Network, said
each judge in the state could rule differently on the issue. Earlier this
month, a Cleveland municipal judge ruled that the state's domestic violence
statute includes unmarried couples, she said.


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