March 31, 2006

Appeals court: Marriage ban trumps home violence law

Latest ruling goes against five others, sending the issue to the Ohio Supreme Court

by Eric Resnick

Dayton--An Ohio appeals court has ruled that the state constitution�s marriage ban amendment stops the domestic violence law from applying to unmarried couples.

By doing so, the Second Ohio District Court of Appeals has ensured that the state�s highest court will ultimately decide how much the 2004 amendment affects the domestic violence measure, and possibly other state laws.

It is the first appeals court to say that the law runs afoul of the amendment�s second sentence because it applies to a person �living as a spouse,� of either the same or opposite sex.

The second sentence 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.�

Five other Ohio district courts, the Fifth, Seventh, Eighth, Ninth and Twelfth, have come to the opposite conclusion. Trial courts have been evenly split in similar cases, in almost every county in the state.

In this case, Karen S. Ward of Fairborn allegedly assaulted her live-in boyfriend Fred Almonds, Jr. She was arrested and charged with one count of domestic violence, a fourth-degree felony.

Ward�s attorney, Ellen Weprin of Dayton, moved to dismiss the charge. She argued that since the domestic violence statute is based on a person �living as a spouse,� using it here violates the constitution.

The Greene County Common Pleas Court agreed, and the charge was dropped. Assistant prosecutor Elizabeth Ellis appealed this to the Second District.

Amendment could affect many laws

At the heart of the argument is whether the amendment�s second sentence will be construed broadly or narrowly across a wide array of Ohio laws affecting everything from domestic violence to partner benefits, child custody, probate, insurance and others.

Child custody cases testing the amendment are making their way through the courts, as is a suit against Miami University�s domestic partner benefits. A suit challenging the Cleveland Heights domestic partner registry ended last year, leaving the registry intact.

But dozens of cases challenging the domestic violence law have been filed under the amendment, even before it took effect. They have drawn the most attention, and the most arguments filed by groups and individuals as �friends of the court.�

The �friend� briefs seen as affirming lesbian, gay, bisexual and transgender families seek to narrow the amendment�s overall effect. They argue that only marriage approximates marriage, and that the voters never intended the amendment to have any effect outside preventing same-sex marriages.

Those seen as hostile to LGBT families want the courts to interpret the amendment broadly enough to strike down most legal protection and benefits they might currently enjoy, and prevent the possibility of creating new ones.

In the domestic violence cases, the LGBT-affirming groups are represented by the American Civil Liberties Union of Ohio, Lambda Legal Defense and Education Fund, the Action Coalition of Battered Women, the Ohio Domestic Violence Network, and the Ohio National organization for Women Education and Legal Fund. They argue for the prosecution, that the charges should stick.

The anti-gay Citizens for Community Values, which campaigned to pass the amendment, argues with the defendants that the charges should be dismissed.

Constitution is supreme

There were no �friend� briefs in the Second District case, but the court took notice of the ones filed in other cases, because they are all the same.

�We have considered those briefs, all of which have been helpful, in deciding this appeal,� wrote Judge Mike Fain.

Fain was joined in the majority by Judge James Brogan. Judge Mary Donovan dissented.

Trial judges who have ruled that unmarried couples can�t be covered by the domestic violence law note that the definition of �cohabitation� agreed on by Ohio courts has been used in the past to protect the rights of LGBT families and should be preserved.

Fain touched that point, but instead made the crux of the decision one of constitutional construction.

�The Constitution of Ohio, including, of course, Article XV, Section 11 [the marriage ban amendment], is the supreme law of this state,� wrote Fain.

Fain rejected a claim in the ACLU brief, embraced by the other district court rulings, that amendments and laws should be construed in such a way that conflict between them is avoided.

He wrote that the voters could have put provisions in the amendment so that it excluded other laws if they had wanted it that way.

�They did not do so,� wrote Fain.

�It is no more appropriate to construe the provisions of the [marriage ban amendment] deferentially to existing statutes than it would be to construe the provisions of Article I, Section 11, for freedom of speech and of the press, in a manner deferential to statutory law,� wrote Fain.

Fain cited the 1919 Ohio Supreme Court case State, ex rel. Rose v. Donahey saying, �the adoption of an amendment to the Ohio Constitution may implicitly have the effect of repealing various statutes that are in conflict with the newly adopted amendment.�

�The [marriage ban] amendment is no less a part of the fundamental, organic law of Ohio, by reason of its recent vintage; if anything it is entitled to even greater deference,� Fain wrote.

�In stating this obvious fact, we make no observations concerning the wisdom of the electorate in having adopted the amendment,� Fain wrote. �Our sworn obligation to uphold the Constitution of Ohio is not limited or qualified in any way based on our assessment of its merits.�

One �effect� of marriage is enough

Fain noted that the second sentence of the amendment �appears to be an attempt to prevent the legal recognition of quasi-marital relationships.� He said the issue was whether a law must give all of the effects of marriage to an unmarried couple to trigger the amendment, or just one effect of marriage.

One effect is enough, he concluded.

Otherwise, �At what point would the second sentence of the amendment be deemed to have been violated?� He then listed several other possible exceptions.

�It is tempting to speculate which . . . would have found favor with a majority of the Ohioans who voted for the amendment, but this would be mere speculation.�

Donovan disagreed in her dissent, arguing that Fain and Brogan used conjecture and speculation in their analysis, too.

�What is a �quasi-marital relationship� or a �quasi-spouse?� � wrote Donovan. �These are not legal terms in the state of Ohio and probably would be as incapable of definition as quasi-marriage proposals, quasi-pregnancies and quasi-divorces.�

�The second sentence should be read to buttress the narrow legal definition of marriage set out in the first sentence of the [amendment],� she continued.

�Specific terms appear in the first sentence of the amendment, defining marriage as �a union between one man and one woman,� � wrote Donovan. �The term �legal status,� therefore, relates to a union between one man and one woman, and the second sentence merely prohibits recognizing a marriage of two or more persons other than one man and one woman. A broader reading would render one man/one woman entirely superfluous.�

Donovan added that the domestic violence law was intended to cover �family or household members� when it was passed in 1979.

�A person �living as a spouse� is a family or household member,� she said.

�It is illogical to conclude that a person �living as a spouse� and/or cohabitating somehow is elevated to the position of a state-sanctioned marriage,� Donovan wrote.

It is not yet apparent which of the cases will lead the way to the Ohio Supreme Court, only that one will, and it will likely be soon.

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