Same sex marriage has been permitted in North Carolina for a couple of weeks. Shea blogged here about one potential criminal law implication: the possibility, discussed in a memorandum from the Administrative Office of the Courts, that magistrates could be charged criminally for refusing to marry same-sex couples. As noted in this recent news article, a number of magistrates have resigned as a result. But the issue I’ve been asked most about is how same-sex marriage relates to our domestic violence laws.
Specifically, I have been asked how same-sex marriage relates to the 48-hour rule and to domestic violence protective orders issued under Chapter 50B.
The 48-hour rule. Under G.S. 15A-534.1, only a judge may set bond in a domestic violence case within the first 48 hours after arrest. The statute applies mainly to certain crimes committed against a “spouse or former spouse or a person with whom the defendant lives or has lived as if married.” I noted in this prior post the uncertainty about whether same-sex couples were covered by that language. I don’t see any more uncertainty. A same-sex couple married in North Carolina or elsewhere are “spouse[s],” or if subsequently divorced, “former spouse[s].” Same-sex couples who are cohabiting are living together as if married.
Chapter 50B orders. More complicated interpretive and legal issues arise in the context of Chapter 50B orders. G.S. 50B-1(b) lists the types of relationships that are eligible for DVPOs. The list includes “current or former spouses,” and the new meaning of that term is clear. However, the expanded definition of that term probably doesn’t cover many more people, as “current or former household members” was already a covered category and presumably reached most same-sex spouses.
I can imagine some changes to the category “related as parents and children,” if the law regarding adoption changes in the aftermath of the same-sex marriage ruling. I imagine that it might but the issue is far beyond my expertise. (My colleagues Sara DePasquale and Meredith Smith address one aspect of the question in this blog post.) Again, I tend to think that any change will be of limited practical import given the existing coverage of household members.
Perhaps the most interesting issue here, and the one of greatest practical import, concerns subdivision (b)(6), which encompasses “persons of the opposite sex who are in a dating relationship or have been in a dating relationship.” I can imagine a constitutional challenge to that provision on the grounds that there is no basis for limiting it to opposite-sex couples. If such a challenge were successful, I don’t know whether the remedy would be a judicial expansion of the rule or an excision of the rule from the statute.
As always, questions and comments are invited.