December 16, 2005

Ban doesn't affect domestic violence law, says appeals
court

12th District is first higher panel to rule on issue disputed in dozens of cases

by Eric Resnick

Middletown, Ohio--The first appeals court to consider how Ohio�s new marriage ban amendment affects the domestic violence law says that it doesn�t.

The domestic violence law applies equally to married and unmarried couples, both same-sex and opposite-sex. In dozens of cases around the state, unmarried defendants have argued that the constitutional amendment means the law can�t apply to them. Trial judges have ruled both ways.

The Twelfth District Ohio Court of Appeals said December 12 that the domestic violence law doesn�t create or recognize a �legal status for relationships of unmarried individuals,� so it doesn�t run afoul of the amendment.

The decision is considered to be a victory for LGBT advocates, who want to narrow the effect of the anti-gay amendment overall.

At the heart of the defendants� argument is the second sentence of the amendment which says, �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.�

In this case, the Warren County Common Pleas Court ruled that it would be unconstitutional to charge defendant Michael Carswell with domestic violence--a third degree felony here, due to prior offenses--for allegedly abusing Shannon Hitchcock, a woman to whom he is not married.

The state appealed that ruling in April, and the three-judge 12th District panel agreed with them unanimously.

Presiding Judge Stephen Powell wrote the court�s opinion, in concurrence with Judges William W. Young and H.J. Bressler. It says that the enactment of the amendment �was not an express attempt to overrule [the domestic violence statute] as it applies to unmarried, cohabiting individuals.�

�The statute classifies a cohabitant as one of many potential victims,� wrote Powell. �We do not find that such classification creates a �legal status� for relationships between unmarried, cohabiting individuals.�

In the many trial-court rulings on the issue, judges who have let the domestic violence law stand say that the voters who passed Issue 1 last year never intended the amendment to do anything other than ban same-sex marriage.

The decisions that find the domestic violence law unconstitutional for unmarried couples tend to rely on a definition of �cohabitation� that comes from case law also used to protect some rights of gay and lesbian couples.

In this case, the judges found a suitable definition for the word �status� in a 1993 edition of Webster�s Third New International Dictionary, and rely on it to support their opinion that the domestic violence law doesn�t create one.

The judges also relied on Ohio�s legal principle of presuming that laws are constitutional unless an extraordinary case is made to prove otherwise, which they said Carswell did not do.

�[The domestic violence law] does align unmarried, cohabitating persons with married persons in the sense that individuals in both groups can be classified as offenders or victims under the statute,� wrote Powell. �However, such an alignment does not amount to the creation or recognition of a status �that intends to approximate the design, qualities, significance, or effect of marriage�.�

�The intent of the domestic violence statute is clear on its face; to protect all members of a household from domestic violence by punishing those who commit domestic violence,� Powell wrote.

Ohio American Civil Liberties Union attorney Carrie Davis wrote their friend-of-the-court brief asking the 12th District to rule as it did.

Davis said the decision resulted from the court being very judicially conservative in that they kept the issues as narrow and focused as possible.

The ACLU was joined as a friend of the court by the gay and lesbian Lambda Legal Defense and Education Fund, the Action Ohio Coalition for Battered Women, the Ohio Domestic Violence Network and Ohio National Organization for Women Education and Legal Fund.

There were no friends of the court supporting Carswell, but in other similar cases, the anti-gay Citizens for Community Values--which campaigned to pass the amendment--has filed on behalf of defendants, asking the courts to interpret the amendment as broadly as possible.

Davis said this decision �is a step in the right direction� which she hopes will �set a precedent� for the others.

�For a first appellate opinion, this is a good one,� said Davis.

Both sides know that eventually the Ohio Supreme Court will have to decide what the amendment�s second sentence means with regard to domestic violence and other areas of law, though no one can speculate when that may happen.

Not addressed in this opinion is whether or not the amendment violates the Fourteenth Amendment of the U.S. Constitution, as Cuyahoga County Common Pleas Judge James P. Celebreeze found last month in another domestic violence case.

Carswell�s attorney Thomas Eagle of Lebanon hopes this case will be taken up by Ohio�s high court.

�I anticipate we will appeal,� Eagle said, noting that the decision is up to Carswell. �This is a controversial issue that the Ohio Supreme Court will have to take up eventually.�

The 12th District�s ruling governs only cases in its southwest Ohio area, but the other unmarried domestic violence cases will be influenced by it.

Previous Story------------------------------------ Next Story

List of Stories in this Week's Issue