April 1, 2005

Does Issue 1 limit the domestic violence law?

Four judges have made opposing rulings while lawmakers ready changes

by Eric Resnick

Cleveland--Three more courts have issued opinions on the conflict between Ohio�s 25 year old domestic violence law and the constitutional marriage ban amendment passed by voters as Issue 1.

Two of the opinions say unmarried couples are no longer covered due to the amendment�s controversial second sentence, which bars state recognition of any unmarried relationship that approximates marriage.

The third says the second sentence, while unclear, doesn�t have any bearing.

The opinions, made in the last week, are added to an earlier Cleveland Municipal Court decision saying the amendment has no effect.

Dozens of other courts throughout the state have either granted or dismissed unmarried defendants� motions to drop domestic violence charges because of the amendment, but without comment.

Meanwhile, two state representatives are preparing measures to amend the domestic violence law to clarify its application to an unmarried person �living as a spouse.�

The differences of court opinion will lead to more legal action and appeals and the judges� rulings will probably end up in the Ohio Supreme Court.

So far, all the courts have avoided considering if the amendment is constitutional under the U.S. Constitution�s Fourteenth Amendment equal protection guarantee, preferring to leave that question to an appeals court.

Home violence reduced to assault

Cuyahoga County Common Pleas Judge Stuart A. Friedman granted defendant Frederick Burk�s motion to dismiss the domestic violence charges against him on March 23. He said the amendment makes those charges unconstitutional when the couple is not married.

Burk faced up to 18 months in prison for the charges, involving his girlfriend. Friedman reduced them to assault, which carries a maximum of six months.

In doing so, Friedman ruled as he signaled he would have in a February case. He didn�t address the Issue 1 question then because that case�s alleged violence occurred before December 2, when the amendment took effect.

In this later ruling, Friedman disagreed with the March 10 decision of Cleveland Municipal Court Judge Ronald B. Adrine, who said the amendment does not conflict with the law because the voters did not intend it to.

In Burk�s case, Friedman wrote, �Ohio�s domestic violence statute in essence recognizes a legal status for such relationships that in a crucial respect �intends to approximate the design, qualities, significance or effect of marriage.�

He quoted the amendment�s second sentence, which reads in full: �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.�

Friedman concluded that the measure�s first sentence, which defines marriage as between one man and one woman, is clear.

�Had the text ended there, this issue would not be before the court,� wrote Friedman.

Friedman reasoned that the amendment�s framers chose the language of the second sentence for a reason.

�It may be argued that that the intent of the second sentence was simply to preclude recognition by the state of so-called �domestic partnerships� or �civil unions� as a back-door means of sanctioning same-sex relationships,� wrote Friedman.

�However, by its explicit terms [the amendment] is not so limited, but clearly is worded as broadly as possible, so as to encompass any quasi-marital relationships--whether they be same-sex or opposite-sex,� Friedman concluded.

Definition of �cohabitation� is key

The main legal contradictions in all the cases lie around the definition of �cohabitation,� which is required to exist, in 25 years of case law, before an act can be considered domestic violence.

Friedman wrote, �college roommates or mere friends may share a house, or even a bedroom, but share none of the other attributes of �cohabitation� . . .�

Quoting State v. Williams, a 1997 Ohio Supreme Court case that is cited in all four judges� decisions, Friedman wrote, �Short period of living together without mutual support and without regarding the situation as a husband/wife situation is not cohabitation.�

Friedman then cited a Hamilton County Municipal Court decision from 1996, State v. Linner, that determined the conditions of cohabitation. That case is the one that--before the amendment--said that domestic violence laws also applied to same-sex couples.

In Linner, cohabitation includes living together under one roof, sharing expenses and liabilities, owning property together, socializing together as a couple, engaging in a sexual relationship, exchanging vows of commitment, and parenting a child together or raising children together.

Friedman also cited cases where the definition of cohabitation was used to compel support where the couple was not married.

�Cohabiting is a relationship that in all respects approximates the significance or effect of marriage,� wrote Friedman.

Friedman wrote that he had tried �to find a way that the definition of of �family or household member� set forth in [the domestic violence law], and refined through a quarter-century of case law, could be reconciled with the equally explicit language of [the amendment]. It is therefore, with greatest reluctance that this court must find that the two simply cannot be rendered compatible without distorting the plain meaning and clear intent of one or the other.�

Friedman stayed his ruling for 30 days for the prosecutors to appeal, which they have done.

Amendment was intended to be broad

The same day as Friedman�s ruling, Cleveland Municipal Court Judge Lauren C. Moore granted a motion by defendant Randall Voies to dismiss his domestic violence charges.

Moore essentially agreed with Friedman on the �cohabitation� definition. She also addressed the matter of voter intent that was the basis of Adrine�s contradicting decision.

In Voies� case, prosecutors argued that the amendment focused only on gay and lesbian relationships, so it didn�t apply at all to his heterosexual one.

Moore quickly dismissed that claim, pointing to statements last year by Governor Bob Taft, the League of Women Voters of Cincinnati, and Case Western Reserve University criminal law professor Lewis Katz showing that people knew before the amendment passed that it could be widely applied.

Taft had called the amendment overbroad and said it �goes beyond House Bill 272 [the �defense of marriage act�] into uncharted waters.�

Moore wrote, �This gubernatorial statement shows that fundamental challenges to the amendment, in general, and domestic violence statute, in particular, should have been contemplated. These dangers were known, or should have been known, before the initiative was passed in November.�

Moore also pointed to the web site of Ohioans Protecting the Constitution, the group formed to oppose Issue 1 last year. It contains Ohio daily newspaper editorials that oppose the measure because it could adversely affect laws already in existence.

�The amendment is not just about eliminating gay marriage,� Moore wrote, adding that the legislature had already done that by passing DOMA a year ago.

�[A]n argument could also be made that the language in DOMA also satisfactorily eliminated the possibility of gay civil unions,� wrote Moore. �If it was the goal of this initiative to also ban gay civil unions, the second sentence, arguably, could have specifically stated that Ohio �shall not create or recognize a legal status for relationships of [homosexual individuals] that intends to approximate the design, qualities, significance or effect of marriage�.�

��For some unknown reason, the framers of Issue 1 elected not to do this,� concluded Moore. �Since no exceptions or exemptions were included in the amendment, it can also be assumed that legislative and/or voter intent, in so far as it can be divined, was to discourage cohabitation in any form--homosexual, heterosexual or otherwise.�

Moore found that, based on the interpretation of �cohabitation,� a legal status is created for unmarried partners even if it is only �that they are considered prospective defendants for the limited purpose of prosecution under the domestic violence statute.�

She concluded that before the amendment went into effect, the domestic violence law was �a logically worded piece of legislation.�

�However, the enactment of the amendment had the unfortunate consequence, intended or unintended, of voiding that portion [of the law] which defines a �family or household member� as it relates to unmarried individuals.�

�Cohabitant� isn�t a legal status

Two days after Friedman and Moore�s rulings, a judge in Columbus said the amendment does not affect the domestic violence law.

Franklin County Common Pleas Judge Richard A. Frye denied defendant Terry Rodgers� move to drop his charges because he is not married to his girlfriend, whom he is accused of beating.

Frye�s opinion tracks Adrine�s earlier belief that voters only intended the amendment to define marriage.

The judge wrote that the domestic violence law has never been interpreted narrowly as restricted to people in a heterosexual marriage.

Frye wrote, �The existence of cohabitation within a relationship is a factual determination that must be made on a case-by-case basis.�

� �Cohabitant� is therefore not a legal status, let alone a legal status that �intends to approximate the design, qualities, significance or effect of marriage,� wrote Frye.

Frye accepted the statements of amendment proponents last year that Issue 1 doesn�t interfere with private relationships.

�In contrast,� wrote Frye, �the court does not believe that statements of those who opposed Issue One . . . have value in a situation like this. Opponents� views are not necessarily motivated by concerns of legal accuracy as opposed to pre-election hyperbole.�

Frye concluded that the amendment has no bearing on criminal laws.

�Indeed, it would be peculiar to use the criminal code to define marriage or any other legal status,� wrote Frye.

At press time, Rodgers has not filed an appeal, though one is expected.

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