December 23, 2005

Another appeals court says ban doesn't change DV law

by Eric Resnick

Cleveland--A second appeals court has now ruled that Ohio�s marriage ban amendment has no effect on the state�s domestic violence law.

Three judges of the Eighth District Ohio Court of Appeals agreed with last week�s Twelfth District opinion on the matter, though they took a different logical route.

Both outcomes are considered victories for advocates of lesbian, gay, bisexual and transgender rights, who want to narrow the effect of the amendment�s second sentence, which reads: �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.�

The domestic violence law was written in 1979 to cover both married and unmarried couples living together. Unmarried defendants in at least two dozen cases around the state have claimed that the amendment, passed last year as Issue 1, means the law no longer applies to them.

But it does, wrote Judge Michael J. Corrigan for the panel, with Judges Patricia Ann Blackmon and Anthony O. Calabrese, Jr.

�[T]he threshold determination of whether any individuals fall within the definition of �family or household member� is whether they reside with or have resided with the offender,� Corrigan wrote.

�Family or household member� is one of the terms that triggers the domestic violence law in cases that might otherwise be considered assault.

The December 20 decision reversed the first trial court to rule on the matter, in the case of Frederick Burk, charged with domestic violence for allegedly attempting to cause harm to Barbara Sanders, to whom he is not married.

In that ruling last March, Cuyahoga County Common Pleas Judge Stuart A. Friedman had linked the domestic violence law to �cohabitation,� a legal term derived from case law also used to protect some rights of gay and lesbian couples.

Friedman said that �cohabitation� is a status that has meaning in law, so it makes the domestic violence statute incompatible with the ban amendment.

Writing for the Eighth District court, Corrigan created a different meaning for �cohabitation.�

�While �cohabitation� defines a relationship between people, that status is factual, not legal,� wrote Corrigan.

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

�Ohio courts have consistently applied the domestic violence statute to same-sex couples,� wrote Corrigan, �reasoning that it is not the sexual relationship of the parties that determines whether their factual situation falls within the definitions covered by Ohio�s domestic violence statute.�

�Although sexual intercourse is �persuasive indicium� [a distinctive indication] of cohabitation, it is not conclusive,� wrote Corrigan. �Instead, the factual determination for domestic violence purposes has always been whether the parties have cohabited,� meaning, simply lived together.

The court also used an 1858 Ohio Supreme Court opinion, State ex rel. Smead v. Union Twp., to say that the trial court did not give �reasonable construction� to the amendment in order that both it and the law would stand.

According to Corrigan, this �presumption of constitutionality� was ignored by Friedman.

That principle, which was also applied, though slightly differently, in last week�s Twelfth District case, says that laws are presumed to be constitutional �unless the legislation and constitutional provisions are clearly incompatible.�

Friedman ruled that the domestic violence law was not entitled to the presumption of constitutionality because it came first, and that the amendment created the conflict with it.

Corrigan disagreed, saying it doesn�t matter which came first, the court must find a way to make them both stand.

Ohio American Civil Liberties Union lawyer Carrie Davis said the second opinion adds �more certainty� to her hope that the amendment gets interpreted narrowly.

Davis authored the ACLU�s friend of the court brief in both cases, and was joined in that capacity in this case by the Action Ohio Coalition for Battered Women, the Ohio Domestic Violence Network, Ohio National Organization for Women Education and Legal Fund and the gay and lesbian Lambda Legal Defense and Education Fund.

There were no friends of the court supporting Burk, but in other similar cases around the state, 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.

In this case, the state was represented by Assistant Cuyahoga County Prosecutor Matthew E. Meyer, and Burk was represented by public defenders John T. Martin and David McGee.

All parties involved with the other similar cases around the state believe that the issue will ultimately be settled by the Ohio Supreme Court, though no one speculates on when that will happen.

Neither Martin nor McGee could be reached by press time to see if they intend to appeal this case.

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