High court said it applies only to �all� marriage attributes, Partner benefits are okay, law prof says

by Eric Resnick

Columbus--The Ohio Supreme Court opened a door for pro-LGBT reform last week when it ruled that domestic violence laws may cover unmarried same-sex and opposite-sex couples.

The court decided July 25 that the state constitution�s marriage ban amendment did not stop these laws from applying to unmarried couples, but the ruling has a wider effect.

�The court has rolled back the cloud of doubt that the marriage amendment rolled in over LGBT rights,� said Ohio State University law professor Marc Spindelman. �The working assumption that the amendment would be an obstacle is gone.�

Spindelman, a gay man, has studied marriage amendments passed in Ohio and 26 other states and published legal journal articles on their effect.

Spindelman says the court chose �reason and rationality� over �traditional morality� in developing the basis for the decision, and rejected all the arguments put forward by cultural conservatives, including Citizens for Community Values, the anti-gay group that passed the 2004 marriage amendment. CCV also filed a friend of the court brief on the losing side of the domestic violence matter.

The case concerned Michael Carswell, a Warren County man who was indicted for domestic violence after he allegedly assaulted his female partner, to whom he was not married.

Carswell argued that the decades-old domestic violence law�s application to a person �living as a spouse� had been voided by the amendment�s second sentence.

The 6-1 decision was the court�s first look at the amendment.

In the ruling, Spindelman said, the court also signaled that the legislative and executive branches of government can create legal status and protections for LGBT couples and their families if they stop short of being equivalent to marriage.

Spindelman points to a passage of the majority opinion written by Chief Justice Thomas Moyer. He says it is the key to what the court thinks of the amendment�s second sentence, which 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.�

Moyer wrote, �. . . the second sentence of the amendment means the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage--a marriage substitute.�

The key word is �all� of the attributes, not some of them. Moyer reinforced this a couple paragraphs later, saying, �It is clear that the purpose of Issue 1 [the amendment] was to prevent the state, either through legislative, executive, or judicial action from creating or recognizing a legal status deemed to be the equivalent of a marriage of a man and a woman.�

Moyer�s example of what the court considers a �marriage substitute� is a civil union.

Domesic violence laws can apply to an unmarried couple �living as a spouse� under the amendment because this is not a status that bears �all of the attributes of marriage,� the court ruled, according to Spindelman.

By setting a high standard for what �approximates� marriage, the court is saying that providing any benefits short of a �civil union� is fine, Spindelman said.

�The state can recognize all same-sex relationships as long as they are not civil unions,� said Spindelman. �The court sees only civil unions as a marriage substitute.�

Domestic partner benefits in the clear

Spindelman said the decision also settles State Rep. Thomas Brinkman�s suit against Miami University over its domestic partner benefits, and any similar actions, because the benefits are not a marriage substitute, either.

�Before this decision, the working assumption was that they were,� said Spindelman. �Now that�s not an obstacle.�

Spindelman advanced that argument in a June 2006 Legal Times article titled �The Honeymoon�s Over: Cultural conservatives stumble legally in campaign to ban same-sex marriage.� The Ohio justices were given copies of Spindelman�s article.

Spindelman said that Justice Judith Lanzinger, in her dissent, also recognized that the majority is allowing for the recognition of legal status short of marriage substitutes, which she could not reconcile with the amendment.

Spindelman said that Lanzinger probably has the better argument, academically and based on previous Ohio decisions, but �the message of the U.S. Supreme Court in Lawrence v. Texas is sinking in, in Ohio.�

In Lawrence, the high court struck down state sodomy laws.

�The message in Lawrence,� said Spindelman, �is that LGBT people are first class citizens with claims to rights and protections.�

Spindelman said the majority reconciled their decisions with previous Ohio ones by stating that �cohabitation� is a status created by individuals, not the state, and that it is not a marriage substitute, as Carswell and the amendment�s proponents argued.

Spindelman said that other states with marriage amendments will look to this Carswell decision for guidance, so it goes farther than Ohio.

In �The Honeymoon�s Over,� Spindelman wrote �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, 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� under the U.S. Constitution.

Spindelman said that realization may be why social conservative justices like Evelyn Lundberg Stratton, who have ruled against LGBT rights in the past, joined the majority in Carswell.

�It was the only way to preserve the amendment,� Spindelman said.

Ironically, CCV vice president David Miller has been hailing the decision as a �win for everyone concerned.�

Miller was not available for comment for this report, but told the Canton Repository, �Our purpose was to protect the marriage protection amendment. We wanted to protect individuals from domestic violence.�

This contradicts the position CCV took in its amicus brief in the case. The amendment�s author, David Langdon, also wrote the CCV brief. He began it with, �At the outset it should be noted that the compelling public policy arguments that support the domestic violence law are not germane to this case.�

Spindelman said it is now up to the LGBT community to push the legislative and executive branches for the incremental rights and benefits that the court is inviting, as well as in the hearts and minds of Ohio citizens. He expects the cultural conservatives will continue using those means to turn LGBT rights back.

�Unfortunately,� said Spindelman, �the court did not go so far as to prevent future attacks on LGBT people and families.�

�Our job now is to hold the court to the promise of its ruling in Carswell,� Spindelman said.