January 28, 2005

Issue 1 does not affect home violence law, ACLU tells
court

by Eric Resnick

Cleveland--The American Civil Liberties Union is asking an Ohio court to rule that Issue 1 does not affect domestic violence laws.

The group has filed a brief in a domestic violence case in Cuyahoga County Common Pleas Court saying that the law still covers unmarried couples even though Issue 1 bars state recognition of them.

The filing is the first move of an ACLU strategy to get Ohio courts to interpret the constitutional amendment as narrowly as possible.

The situation arose last week when Jeff Lazarus, a law clerk with the Cuyahoga County Public Defender, filed motions to dismiss at least two domestic violence cases where the victim and the accused are not legally married.

Lazarus cited 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.�

Ohio�s domestic violence law applies to a �spouse, a person living as a spouse, or former spouse.� It allows a victim to get protective orders and relief greater than would be available for simple assault or battery by an unrelated person.

Lazarus, and some opponents of Issue 1 during the campaign, reason that same-sex or opposite-sex unmarried domestic partners are no longer �persons living as a spouse� since the amendment took effect.

The ACLU, however, says that another section of the domestic violence statute should apply.

That section describes a person living as a spouse as �a person who is living or has lived with the offender in a common law marital relationship, who is otherwise cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.�

ACLU general counsel Lloyd Snyder said group is not trying to have the amendment declared unconstitutional, but it is advising the court how to interpret the law under it.

Since the ACLU is not a party to the case, it will not have standing to direct where it goes or how it may get appealed.

But, according to Snyder, if it gets to the Ohio Supreme Court, the ACLU �would consider quite seriously to go too.�

�The fact pattern in these [domestic violence] cases is quite stark,� said Snyder. �We�ll see what the courts do with this. We may bring suits or future cases later.�

�It�s easy to misread the language of the [amendment�s] second sentence,� said Snyder. �The voters did not give license to cohabiters to beat up on each other.�

The brief also notes the ballot argument written by Issue 1 proponents which reads, �Issue 1 does not interfere in any way with the individual choices of citizens as to the private relationships they desire to enter and maintain.�

That description, however, was campaign language and has no effect in law.

The ACLU further argues that no legal status in Ohio �approximates� marriage except marriage itself.

�Cohabitation is not a legal status approximating marriage, and, therefore, Issue 1 is irrelevant to Ohio�s domestic violence laws,� the brief says.

The matter is scheduled to be heard by Cuyahoga County Common Pleas Judge Stuart Friedman on January 27.���������������

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