December 9, 2005

Marriage ban is against U.S. constitution, judge rules

Decision is among several that say amendment limits domestic violence law

by Anthony Glassman

Cleveland--Another trial court added to the collection of contradictory rulings on the effect of Ohio�s anti-marriage constitutional amendment on November 28, finding that the measure invalidates domestic violence protections for unmarried couples.

Cuyahoga County Common Pleas Court Judge James P. Celebrezze�s decision also found that the second sentence of the amendment violates the Equal Protection clause of the U.S. Constitution.

In the case, Tori D. Phelps asked Celebrezze�s domestic relations court for a protection order against her boyfriend, Brian K. Johnson.

Ohio�s domestic violence law allows unmarried same-sex and opposite-sex couples to obtain protection orders in family court, and requires local police departments to enforce them.

Johnson�s attorney argued that, under Article 15, section 11 of the Ohio Constitution, Phelps could not be given a protection order.

That amendment, passed last year as Issue 1, reads, �Only a union between one man and one woman may be 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 unwed partners that intends to approximate the design, qualities, significance or effect of marriage.�

Celebrezze ruled that the second sentence bars courts from granting protection orders to a member of an unmarried couple.

�In Ohio only married individuals generally have a right to use the domestic relations court as a forum to resolve their differences,� Celebrezze wrote. �The one exception to this general rule was provided by the domestic violence act, which recognized the importance of providing the victims of domestic violence with a convenient and efficient forum for protection, separate from the criminal justice system, even if said victim is not legally married to the perpetrator.�

After describing the mechanisms of the domestic violence law, Celebrezze concluded, �Clearly, the extraordinary access to the domestic relations court, provided by the domestic violence act, is a �legal status� that approximates a status granted to married couples.�

Celebrezze, however, decided that Phelps should be granted a protection order because there is no �rational basis� for the state to discriminate against unmarried couples, violating the clause in the Fourteenth Amendment of the U.S. Constitution that reads, �No state shall . . . deny to any person within its jurisdiction the equal protection of laws.�

The amendment violates the clause, �because the differentiation between the protections provided married victims of domestic violence, vis-�-vis unmarried victims, bears no rational relationship to a legitimate state interest,� he wrote, �and the classifications drawn in the second sentence . . . are not reasonable in light of this purpose.�

Judge notes Bush campaign angle

The judge�s decision also made note of another reason Ohio�s constitutional amendment was put forth: the effort last year to get evangelical Christian voters out to the polls to support President Bush�s reelection campaign.

�A legal analysis of the purpose behind [the amendment] is probably the most damning . . . as it pertains to the Equal Protections clause� he noted. �It is nearly impossible to divine the purpose for discrimination against unmarried persons, although it is generally accepted that the architects of such referendum ballot issues (across the country) were political operatives like Karl Rove, who sought to guarantee that a certain demographic of voters would turn out in large numbers at the polls to vote in the presidential election.�

�Likewise,� he continued, �the other end of the political spectrum promoted referendum issues that sought to raise the minimum wage. The difference between these political efforts was that the Rove side of it served to seriously confuse and complicate the law as it pertains to protecting the victims of domestic violence.�

Lynne Bowman, executive director of Equality Ohio, was gratified by the ruling and the reasoning expressed in it.

�Many folks who voted for the amendment didn�t believe the language would put people in harm�s way,� she noted. �We�re seeing today that the courts are finding that it does.�

�Ohio law should recognize that unmarried couples and their children need access to the protections of our constitution and laws, whether that�s from an employer or the state, and this ruling certainly underscores that,� she concluded.

Many other rulings on the subject

Carrie Davis, a staff attorney with the American Civil Liberties Union of Ohio, warns that the ruling�s actual and immediate effects are minimal.

�This is one trial court�s decision,� she pointed out. �There has been a variety, and I do mean a wide variety, of decisions across the state� on how the amendment affects the domestic violence law.

She noted that four other cases that are in Ohio appellate courts, two in Eighth District, which covers Cuyahoga County, one in the Second District (Dayton) and one in the Twelfth District (southwest Ohio surrounding Cincinnati).

The ACLU is advocating that judges interpret the amendment narrowly, adhering to the declared intent of its backers, which was to �protect� marriage in the state of Ohio.

�It should be interpreted as narrowly as possible,� Davis stated. �The way statutes and constitutional sections are supposed to be interpreted is as narrowly as possible, and interpreted so that they don�t conflict.�

Judge Ronald B. Adrine of the Cleveland Municipal Court ruled on March 10 that the amendment didn�t nullify domestic violence protections for unmarried couples. His was the first decision in a case where the alleged abuse occurred after the amendment took effect on December 2, 2004.

A month earlier, another case had the argument about Issue 1 thrown out because the incident occurred before the inception of the amendment.

Two weeks later, Cuyahoga County Common Pleas Judge Stuart A. Friedman ruled that the second sentence of the amendment indeed nullified domestic violence protections for unmarried couples.

Those two cases in the Cleveland area presented a microcosm of the rulings across the state.

�Because there is such a variety of trial court decisions, the actual impact of this decision is minimal,� Davis said.

She did, however, note that it was the first case in which a judge ruled strictly on equal protection grounds that the amendment�s second sentence was unconstitutional, noting that the decision �puts another legal argument into play.�

According to Davis, there has been no word yet on whether Celebrezze�s decision will be appealed.

The final word on the amendment�s constitutionality, however, will come from the Ohio Supreme Court as the various cases make their way up the judicial chain.

�That decision is not necessarily going to come as quickly as we might like,� she said.

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