February 4, 2005

Judge to decide if Issue 1 limits domestic violence law

Marriage ban amendment could hamper survivorship or custody rulings

by Eric Resnick

Cleveland--A Cuyahoga County judge will decide if Ohio�s new marriage ban amendment keeps the state domestic violence law from applying to unmarried couples.

Defense attorneys asked Judge Stuart Friedman on January 27 to dismiss domestic violence charges against Darnell Forte because he is not married to the alleged victim.

Forte�s case is the first of ten or twenty cases in Cuyahoga County and Cleveland courts where the defense has asked that domestic violence charges be dismissed because the people involved are not married, said Public Defender Robert Tobik.

Domestic violence advocates said at press time that they know of at least four more similar cases around the state.

Ohio�s 1979 domestic violence law applies to a �spouse, a person living as a spouse, or former spouse.� This has been interpreted to include unmarried couples, including same-sex ones.

But the second sentence of the amendment, passed in November as Issue 1, 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.�

During the Issue 1 campaign, domestic violence advocates warned that this could be used to void parts of the domestic violence law.

The motions to dismiss domestic violence charges assert that the law creates a legal relationship between unmarried individuals that the state can no longer recognize under the amendment, which is now Article 15, Section 11 of the Ohio Constitution.

They rely on the 1997 Ohio Supreme Court decision State v. Williams, which says, �in contrast to stranger violence, domestic violence arises out of the relationship between the perpetrator and the victim.�

In that case, the court said that relationship could occur when the perpetrator and victim are �cohabiting.�

However, a 1983 case from the Tenth District Court of Appeals, Fuller v. Fuller, created a legal status for the term �cohabitation� that approximates the effect of marriage.

That status, according to the motion, has been applied to domestic violence cases in the past, including a Hamilton County case in 1996 involving a same-sex couple.

In that case, the court used the �cohabitation� status to enforce the domestic violence law.

In an additional case, Taylor v. Taylor from the Eleventh District Court of Appeals, �cohabitation� can mean �assuming obligations equivalent to those arising from a ceremonial marriage.�

�[The Ohio marriage ban amendment] makes this definition of cohabitaion null and void,� according to the defense motion, �and that unmarried individuals living together cannot be equivalent to ceremonial, and therefore cannot be �living as a spouse�.�

State says move is �meritless�

The state, represented by the Cuyahoga County prosecutor and joined by the American Civil Liberties Union of Ohio as a friend of the court, calls the motion to dismiss the charges a �meritless attack.�

They argue that neither the voters nor �the framers of Issue 1 intended to strike down Ohio�s domestic violence law� and that for the court to agree with the defendant would �adopt a reading of Issue 1 so broad that it would violate the Equal Protection Clause of the United States Constitution.�

Prosecutors also argue that the constitutional amendment is not �self-executing� - sufficiently precise in order to provide clear guidance to courts with respect to their application - so it must be either interpreted by courts or directed by additional legislation in order to do anything.

�Read narrowly, Issue 1 simply defines the legal scope of marriage in Ohio,� prosecutors argue. �Issue 1 does not affect unrelated criminal statutes . . . Ohio�s law against domestic violence does not create any new legal status between non-married persons.�

The state says the court should read the amendment and the domestic violence law together in such a way that preserves the law�s constitutionality and the amendment�s constitutionality under the federal constitution.

�The definition of �family or household member� must, by necessity, be somewhat broad to properly account for the relationship of parties rather than their exact living circumstances,� argue prosecutors.

Other family law could be affected

That language comes from other areas of family law, which prosecutors argue would also be affected by a broad interpretation of the marriage ban amendment.

�If survivorship is construed to be one of the natural effects of marriage, then Issue 1 would similarly read to constitutionally invalidate basic property rights between non-married persons.�

During the campaign, Issue 1 opponents claimed that situation was a possible consequence of the amendment.

Prosecutors continue, �Where does the argument stop? Survivorship of property rights between unmarried persons? Power of attorney between unmarried persons? Joint or shared custody of children between unmarried persons?�

Prosecutors also contend that the motion�s author �designed the motion as pretext,� citing a January 15 Plain Dealer article quoting public defender clerk Jeff Lazarus who said he designed the motion to �make the amendment look not so good.�

Judge Friedman, however, said during the January 27 hearing that he would not consider remarks made to newspapers.

�This is not a law school exercise,� said Friedman. �It is an issue of great public interest and constitutional importance.�

�The issue of a [constitutional] conflict is a real one, and I am not going to impugn motives,� said Friedman. �I will consider the motion on its merits.�

During questioning, Friedman asked public defender David Magee if unmarried couples would lose access to protective and no-contact orders if he rules their way.

Magee said restraining orders available under other sections of criminal law would still be available.

�They may not be as swift or as good, but it is still a remedy,� said Magee.

Friedman asked Cuyahoga County assistant prosecutor Matthew Meyer, who argued on behalf of the state, how he knew what the intent of the amendment framers was.

�This is a private group,� said Friedman. �There was no vetting by the Legislative Services Commission� or any other independent authority.

Meyer replied that unless the court rules that the amendment is interpreted so broadly as to violate the federal constitution, or the defense can prove it is unconstitutional, the court has to presume the amendment and the law under it to be constitutional.

�Are you inviting the court to [declare the Ohio marriage ban amendment unconstitutional?] asked Friedman.

�No,� said Meyer, �I�m encouraging the narrowest interpretation possible.�

Neither side wants Friedman to rule on the constitutionality of the amendment, because neither thinks that strategy is in the best interest of their client.

�That�s not ripe this time,� said Meyer.

Meyer suggested that if the domestic violence law was struck for unmarried couples, the legislature could pass new laws again including unmarried couples.

�In this case, you can win the battle and lose the war,� said Friedman, �given how the general assembly is constituted.�

Friedman said he will rule on the matter February 18.

A separate but similar case before Cleveland Municipal Judge Pauline Tarver is nearly as advanced and could be decided near that date or sooner.

Both sides they will appeal the matter if they lose. During the course of one of those appeals, a court could rule the marriage ban amendment unconstitutional.

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