by Eric Resnick

Columbus--Constitutional legal experts disagree on the strategy to combat Ohio�s marriage ban amendment.

As the Ohio Supreme Court considers its first case under the amendment, the legal path taken by the measure�s opponents will determine which future cases get appealed, and possibly how long the amendment will remain in effect.

The conflict is over whether it is better to try for narrowing the amendment�s effect, making it less threatening; or to allow the amendment�s proponents to have it interpreted as broadly as possible, so it will collapse under its own contradictions.

The second path increases its impact but makes it easier for a court to find that it violates the U.S. constitution. The first one makes this more difficult, but limits the impact.

Arguably, the lesbian, gay, bisexual and transgender community and their families win either way. But since the amendment may affect more than 900 areas of law, it is possible that attempts to narrow its scope could mean that many lawsuits, depending on what the courts do.

Lambda Legal Defense and the ACLU have adopted the narrowing strategy in two cases that have been through the courts: State v. Carswell on whether the amendment voids the domestic violence law�s application to unmarried couples, and State Rep. Tom Brinkman�s suit against Miami University�s same-sex domestic partner benefits.

The Ohio Supreme Court heard the Carswell case last week, and a judge dismissed Brinkman�s last month. In a third amendment case, a Franklin County judge ruled in July that it didn�t affect a lesbian couple�s child custody agreement.

�The Ohio marriage amendment is a sweeping piece of morals legislation. By design, it�s an effort to leverage homophobia�in the form of the anti-gay sentiment roused by the Massachusetts Supreme Judicial Court�s decision to recognize a constitutional right to same-sex marriage�in order to brand the Ohio Constitution with the broad imprint of traditional moral values,� wrote gay Ohio State University law professor Marc Spindelman in the Washington, D.C. legal newspaper Legal Times last June.

Spindelman�s article, titled �The Honeymoon�s Over: Cultural Conservatives Stumble Legally in Campaign to Ban Same-Sex Marriage� was cited in several friend-of-the-court briefs in Carswell.

Spindelman wrote his article about a month before the amendment�s author, David Langdon, wrote a friend-of-the-court brief for Citizens for Community Values trying to persuade the court to �prevent unwarranted judicial construction of the amendment which might diminish its operational effect.�

However, Spindelman argues that if CCV�s position wins, the amendment is ironically �just plain unconstitutional,� criticizing Lambda�s position in Carswell.

�As bad as it would be for cultural conservatives if the Ohio Supreme Court rejected the claim that the Marriage Amendment invalidated the domestic-violence law as applied to unmarried couples,� wrote Spindelman, �it would be worse for them if it did not. Accepting that claim, along with its conclusion, compels the declaration�in Carswell or some future case�that the Marriage Amendment itself is unconstitutional.�

Spindelman argues that especially since the 2003 U.S. Supreme Court�s Lawrence v. Texas decision made state sodomy laws unconstitutional, �it�s been settled federal constitutional law that the state cannot legitimately draw distinctions between married and unmarried couples for criminal law purposes�certainly not on traditional morality grounds.�

�But there�s no conceivable justification aside from traditional morality for Ohio not to recognize the existence of nonmarital intimate relationships as such, including their violent realities, through the domestic-violence law,� Spindelman continued.

�Traditional morality alone is a constitutionally inadequate basis for differentiating between married and unmarried perpetrators�and victims�of domestic abuse,� Spindelman concludes.

However, Lambda did not ask the Ohio Supreme Court to declare the amendment unconstitutional. Instead, they tried to persuade others that filed friend-of-the-court �amicus� briefs with them to avoid the issue.

Lambda attorney Camilla Taylor headed the coordination of amicus briefs. Asked about this, Taylor said she has no control over what other lawyers do, adding, �I made my feelings known.�

Taylor said the issue of constitutionality cannot be raised in a criminal case and that the issue �is obviously a strong argument� but has �no relevance� to this case.

�[The amendment] is unconstitutional,� said Taylor. �It�s unconstitutional on its face.�

Taylor added that the equal protection clause of the U.S. Constitution, which is what many believe the Ohio amendment violates, cannot be invoked if the court accepts Lambda�s position that the domestic violence law doesn�t create a status that approximates marriage, and thus the amendment doesn�t affect it.

However, three other groups did ask the court to find the amendment unconstitutional in their brief supporting Lambda�s position.

�To the extent that there is a conflict,� between the law and the amendment, wrote Action Ohio Coalition of Battered Women, the Ohio Domestic Violence Network and Ohio NOW, �the Ohio Marriage Amendment is unconstitutional because the second sentence violates the Equal Protection Clause and the Supremacy Clause of the U.S. Constitution.�

Also ironically, as pointed out by Spindelman, that conflict is created by the position CCV took in the Carswell case, which would create a legal status and recognize unmarried couples.

During oral arguments last week, Michael Carswell�s attorney, Thomas Eagle, argued that the amendment does void the unmarried couple part of the law, which his client is charged under. He told the court that the two sentences of the amendment should be separated and considered independent of each other.

Doing so, however, would likely create another opportunity to have the amendment declared unconstitutional due to Ohio�s �single issue rule� which does not allow for parts of the amendment to be considered separately. A similar rule was used in Nebraska to find their marriage amendment, similar to Ohio�s, unconstitutional.

Taylor advocates a �state by state strategy� for dealing with the marriage amendments, of which Ohio�s is a key element.

She said the amendment will either be ruled unconstitutional or it will be repealed by the voters, when the time is right.

�It�s like when we lost Bowers,� said Taylor, referring to the U.S. Supreme Court�s 1986 decision upholding sodomy laws which they overturned with Lawrence. �The strategy was not to go running back to the Supreme Court right away with a challenge, but to go state by state challenging [the sodomy laws] where we could until public opinion changed, and it became a different playing field.�

Spindelman, however, questions whether that strategy is serving LGBT people in Ohio.

�My basic position on this is that the more forward-leaning arguments should also be made,� Spindelman said. �This does not mean that they have to be the only ones that are made. Lawyers can argue �in the alternative.� It is possible to challenge the marriage amendment both at the retail and the wholesale level.�

�Lambda has exclusively pursued a retail approach to this,� he added. �In popular parlance, death by a thousand paper cuts. There�s no good reason, from what I can tell, why.�

Spindleman concluded his article saying, �But whichever way the Carswell court comes out, it is poised to teach cultural conservatives a lesson the anti-domestic-violence movement has been teaching abusers for years: There�s a price to pay for the moral hubris it takes to treat people as pawns in your own game.�