September 30, 2005

Courts across Ohio wrestle with the ban amendment

Does the anti-marriage measure void parts of the state�s domestic violence law?

by Eric Resnick

Dayton--At least eight Ohio appeals courts are now considering challenges to the state�s domestic violence law under the anti-gay marriage constitutional amendment passed by voters last year.

The cases revolve around whether or not the law still applies to unmarried couples, opposite-sex or same-sex, since the amendment may prohibit that.

The most recent �friend-of-the-court� brief comes from the amendment�s backers, Citizens for Community Values.

The suburban Cincinnati anti-gay group says their amendment cancels the part of the law covering unmarried couples, so defendant David McIntosh can�t be tried for domestic violence because he isn�t married to the girlfriend he is charged with assaulting. The brief was filed August 23 in the Second Ohio District Court of Appeals in Dayton.

CCV is the only group that says the amendment works against the domestic violence law. Four other groups, who have filed �friend� briefs in some of the 12 to 20 similar cases around the state, argue that the law is unaffected by the amendment. Like McIntosh�s, all of these cases involve unmarried heterosexual couples who live together.

The groups filing are the American Civil Liberties Union, the Ohio Domestic Violence Network, the National Organization for Women of Ohio and the gay and lesbian Lambda Legal Defense and Education Fund.

Groups reverse their stands

The goal of most of their briefs is to encourage the courts to rule with language that can be used in future cases to limit the effect of the amendment on other laws.

They are also a reversal of the postures each group struck during the campaign that passed the amendment, then called Issue 1.

CCV told voters that the amendment was just about preventing same-sex marriage. Now they argue that the courts should interpret the measure broadly, suggesting that it is meant to nullify laws and protections whenever the state creates or recognizes a �legal status� for an unmarried couple. This is regarded as the most LGBT-hostile position.

Lambda and the ACLU joined the campaign against the amendment, telling voters that it was dangerous because it could be interpreted so broadly. They are now telling the courts that the amendment isn�t meant to be that way at all, and that it should be interpreted to do little more than prohibit same-sex marriages.

According to staff attorney Carrie Davis, it is the ACLU�s goal to be a friend of the court in at least one case in each of the state�s 12 appellate districts. Currently, they are involved in two cases from Cuyahoga County in the Eighth District, and a Twelfth District case in Warren County.

In Warren County, the ACLU is joined by Lambda, NOW and the Domestic Violence Network. That case, State of Ohio v. Michael S. Carswell, was the first to go up on appeal. The trial court judge dismissed domestic violence charges, saying the marriage ban amendment made them unconstitutional.

In the Second District case where CCV filed, the trial judge ruled the amendment has no effect on the domestic violence law.

CCV president Phil Burress did not return calls to comment on why they chose that case, or if they plan to file in other cases.

What is �legal status� of a couple?

Lambda�s Camilla Taylor declined to discuss their strategy, but said they are likely to file in more cases.

Taylor said there are some differences in all their cases, but the legal issues are the same.

�We want the court to rule that the amendment has nothing to do with the domestic violence law and to narrow and limit the amendment�s effect to only those areas of law where there is an established legal status� [of the unmarried couple,] said Taylor.

In the end, it will all depend on how the courts define �legal status� with regard to two people who live together.

In Carswell, Lambda says the domestic violence statute �does not confer any legal status on an unmarried cohabiting couple, nor does it do anything that intends to approximate the vast array of rights and obligations that civil marriage confers on married partners with respect to each other and to the world at large.�

The ban amendment, now Article 15, Section 11 of the Ohio Constitution, �does not prohibit recognition of relationships for all purposes. It prohibits only recognition of a �legal status for relationships of unmarried individuals�,� writes Lambda.

�Cohabitation is an act, not a legal status. To �cohabit� is �to live together in a sexual relationship, especially when not legally married . . .� Thus, while a cohabiting relationship may resemble a marital relationship in some respects--the parties may live together, sleep in the same bed, share bank accounts, and divide household chores--cohabiting is not a �legal status� created or recognized by law,� Lambda says.

CCV�s brief, which relies less on precedent and more on the amendment itself, argues that a �legal status� has been created by enforcement of the domestic violence statute.

They also argue that the treatment of offenders should be the same whether the couple is married or not. They urge the legislature to change the definition triggering the domestic violence statute to �household members� in order to accomplish that.

CCV does not mention it specifically, but the Ohio House is currently considering a bill by Democrat William J. Healy II of Canton which does exactly that.

�The domestic violence statute�s inclusion (in the list of relationships containing potential victims of domestic violence) of the relationship of the alleged offender and a �person living as a spouse� is certainly a relationship that intends to approximate (one or more of) the �design, qualities, significance or effect of marriage,� says CCV, quoting the amendment.

CCV continues, �The factual status o �domestic partnership� is exalted to �legal status� upon its recognition and definition in a legislative enactment which makes that relationship relevant to the operation of state laws.�

Three judges say law is unaffected

Three judges have already weighed in. A three-judge panel of the Fifth District in Canton has issued what amounts to an advisory opinion on the matter that pleases Lambda and the ACLU.

In that Stark County case Roosevelt Newell�s conviction was affirmed because the domestic violence occurred before the amendment was part of the Ohio constitution.

However, Presiding Judge John F. Boggins and Judges William B. Hoffman and Julie A. Edwards included an authoritative pronouncement on how they would rule on the �legal status� issue.

Writing for the panel, Edwards stated that the court concurs with the prosecutors that �the intent of the Defense of Marriage Amendment was to prohibit same sex marriage� and was a response to the Massachusetts Supreme Judicial Court ruling creating same-sex marriage.

�We agree that the Defense of Marriage Amendment has no application to criminal statutes in general or the domestic violence statute in particular,� Edwards wrote.

The parties in all of the cases have indicated they will proceed to the Ohio Supreme Court and it is likely that appellate court opinions will differ, guaranteeing that the high court will hear the matter.

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