April 22, 2005

Another judge says ban amendment cuts DV law

by Eric Resnick

Lebanon, Ohio--In the latest of a string of such cases, a Warren County judge completely dismissed domestic violence charges against a man charged with assaulting his girlfriend, saying Ohio?s new constitutional ban on gay marriage doesn?t allow them for unmarried couples.

In doing so, Common Pleas Judge Neal B. Bronson agreed with a March 23 decision by Cuyahoga County Common Pleas Judge Stuart A. Friedman that ?living as a spouse? is the same as what the Ohio Supreme Court has described as ?cohabitation,? which the state is barred from recognizing by the amendment?s second sentence.

?This court concurs with the conclusion of Judge Friedman of the Cuyahoga Common Pleas Court that cohabiting is a relationship that in all essential respects approximates the ?significance or effect of marriage?,? wrote Bronson, quoting the amendment.

Unlike Friedman, who reduced the charges in the case of defendant Frederick Burk to assault, Bronson dismissed all charges against Michael Carswell.

Both judges stayed their decisions for 30 days in order to allow prosecutors to appeal, which both have done.

The cases are the first two on the domestic violence law?s conflict with the amendment that will be heard by appeals courts. They will likely be among those ultimately decided by the Ohio Supreme Court.

The two rulings are among dozens of similar cases that have been decided summarily by judges, or will not be appealed because the defendant can?t afford it.

Trial court judges have split on whether or not the amendment, which bars state recognition of anything approximating marriage, conflicts with domestic violence laws when the couple is unmarried.

Friedman?s is the lead opinion that says it does.

A March 29 opinion by Franklin County Common Pleas Judge Richard A. Frye, which is not being appealed, says it does not.

The opinions that find conflict rely on case law defining ?cohabitation,? which, before the amendment, had been used to enforce support orders and domestic violence laws, especially cases involving same-sex couples and unmarried heterosexual ones.

Those who agree with that approach say the law ?cannot have it both ways? when choosing who is favored for protection.

Frye?s opinion relies heavily on the belief that voters did not intend the amendment to go beyond the definition of marriage, though it also questions whether or not voters knew or understood what they voted for.

In the latest case, Carswell?s attorney Thomas Eagle of Lebanon cited Friedman?s opinion with his motion to dismiss the charges, while Assistant Prosecutor Joshua Engel cited Frye?s opinion in his opposition.

Engel also argued that ?the purpose of the domestic violence law is not to approximate marriage, but rather to regulate a broader group of living or familial relationships that merit the extra protections afforded by the domestic violence law.?

Though not addressed by Judge Bronson, that issue could be used by an appeals court to rule the entire amendment unconstitutional under the Fourteenth Amendment of the U.S. Constitution which demands equal protection under the law.

Most of the decisions have so far avoided doing that, while pointing out that they were doing so.

Eagle did not respond to requests for comment for this report.

Warren County Prosecutor Rachel Hutzel wouldn?t commit to taking the case all the way to the Ohio Supreme Court, but said, ?My interest is not protecting cohabitation, but I am willing to make the effort to protect the domestic violence statute.?

Hutzel said another Warren County judge, James Heath, has indicated to her that he will likely rule differently in a similar case in his court.

Bill would change the law

A bill in the Ohio House would attempt to change the domestic violence law to avoid conflicting with the Ohio Constitution and its marriage ban amendment.

State Rep. William J. Healy II, a freshman Democrat from Canton, testified before the House Criminal Justice Committee April 19 on behalf of the bill he introduced March 31.

Healy proposes to get around the ?cohabitation? issue by changing ?person living as a spouse? in the law to ?any person who is residing with the [offender].?

Healy?s H.B. 161, with bi-partisan support, would extend the domestic violence law to cover some casual arrangements it doesn?t include now, such as roommates, prisoners who share a cell and others who share living space, even for brief periods of time.

Healy told the committee, ?It was predicted by many that Issue 1 would create problems due to the second sentence? and the amendment is now creating a loophole that needs to be closed.

Healy said his bill is not trying to redefine marriage in any way. Instead, he said the bill ?intends to correct a conflict in language for a law that was designed to protect Ohio citizens.?

Further testimony on the bill has not been scheduled.

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