Justices won�t expand Ohio marriage ban amendment

High court turns away challenge to former partners� child custody pact

by Eric Resnick

Columbus--After ruling two years ago that the state�s constitutional amendment banning same-sex marriages applies only to those and civil unions, the Ohio Supreme Court last week turned away an attempt to use the measure to void a child custody agreement.

The court declined to hear an appeal of a lower court decision upholding the agreement, between former partners Denise Marie Fairchild and Therese Marie Fairchild, now Therese Marie Leach.

The women split up in 2001 after nine years together, and five years after Denise Fairchild gave birth to a son, now 13, by artificial insemination from an anonymous donor.

Six months before they broke up, the couple signed a joint parenting plan for their child, whom they were raising together.

But almost immediately after voters approved the ban amendment in 2004, Denise Fairchild asked a Franklin County court to void the agreement. It declined, and since then courts have ruled against her at every level, on nearly every point of law.

These now include the state�s highest court which, as Chief Justice Thomas Moyer wrote on January 5, �dismisses the appeal as not involving any substantial constitutional question.�

The justices let stand last year�s ruling by the Tenth Ohio District Court of Appeals in Columbus that upheld the parenting agreement.

That court also agreed with the Franklin County court that the case was covered by Title 21 of Ohio law, which allows the court to decide custody matters between a biological parent and a non-biological parent.

Fairchild and her attorneys Keith Golden and Adam Karl of Columbus had tried to convince the courts that custody matters belong under Title 31, which is about marriage and divorce. They argued that the court �has never addressed the legality, constitutionality and public policy matters of the [parenting agreement] in light of [the marriage ban amendment.]�

It is this premise that the Supreme Court rejected last week. By doing so, the justices affirmed their narrow interpretation of the ban amendment in the August 2007 Carswell decision, which said the measure has no effect on domestic violence laws.

In Carswell, 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 of 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.

The Carswell decision cleared the way for cities to create domestic partner registries such as the one in Cleveland, which is being challenged by a group claiming, incorrectly, that it violates the amendment. It also allows state universities to offer domestic partner benefits to employees, for unmarried partners to be convicted under domestic violence laws, and now, unquestionably, for unmarried couples to settle matters of custody and parenting without interference from the amendment.

Leach is represented by Columbus attorneys LeeAnn M. Massucci, who is lesbian, Thomas Schmidt of Gahanna, and the Lambda Legal Defense and Education Fund.

Lambda�s Camilla Taylor briefed the court and argued the case in the Tenth District. The National Center for Lesbian Rights also filed an amicus brief supporting Leach.������� _|