Justices to decide if it voids part of the domestic violence law

by Eric Resnick

Columbus--Ohio?s highest court took its first look at the state?s same-sex marriage ban amendment this week, focusing on how far its reach can go.

At issue in the December 12 hearing is whether the two-year-old constitutional amendment, which also bars legal recognition for all unmarried couples, voids the part of the state?s domestic violence law that covers those couples.

A lawyer for Michael Carswell, charged with felony domestic violence against his girlfriend in Warren County, told the court that it does.

The state, backed by LGBT and domestic violence groups, argued that it doesn?t.

Carswell?s charges were dismissed last year by Warren County Common Pleas Judge Neal Bronson, who ruled that the marriage ban amendment made the 1979 domestic violence law unconstitutional if the couple is not married.

The issue has come up in hundreds of other courts around the state, with some agreeing with Bronson and others holding that the amendment doesn?t affect the law, which covers anyone ?living as a spouse? and in ?cohabitation.?

Ohio courts have used those phrases to include gay and lesbian couples under the domestic violence law.

Bronson ruled that the phrases have a legal meaning barred by the amendment?s second half, which its backers said was intended to block civil unions. It 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.?

Similar text appears in a dozen of the other 26 state marriage ban amendments that have passed, and the case is expected to set a precedent.

Bronson was reversed last December by the Twelfth Ohio District Court of Appeals, which said the ban doesn?t affect the domestic violence law because it ?does not determine ?the nature of the legal relations to the state or to other persons? that a cohabitant may enter, nor does it determine a cohabitant?s legal capacities.?

?The statute does not confer or take away from a cohabitant a set of legal rights,? the appeals court wrote.

All but two of the state?s appellate court have come to similar conclusions, saying that voters didn?t intend to void the domestic violence law when they passed the amendment--they only intended to prevent same-sex marriage.

All of the cases on this issue have been consolidated into this one, and the high court?s decision will settle them all.

Voices line up, for and against

The case drew dozens of friend-of-the-court briefs. Domestic violence advocacy groups and 62 state prosecutors told the court that the amendment doesn?t affect the domestic violence law. They were joined by the gay and lesbian Lambda Legal and the ACLU.

On the other side were briefs from legal defense groups backing Carswell, and Citizens for Community Values, which created the amendment and campaigned to pass it.

This odd alignment happened because the victim advocates and prosecutors care only about protecting domestic violence victims. They are much less concerned with how the amendment is framed.

CCV, however wants the amendment interpreted in the broadest possible terms in order to maximize its effect. There are more than 900 areas of Ohio law that depend on the definition of ?spouse.? CCV is hoping to set up anti-LGBT lawsuits in as many of those areas as possible.

Lambda and the ACLU want the narrowest interpretation possible in order to minimize the effect of future anti-LGBT litigation.

Neither Lambda nor the ACLU called on the court to declare the amendment unconstitutional, though Action Ohio Coalition for Battered Women hinted that they should. Lambda and the ACLU instead suggest that the court limit the amendment in order to create a legal framework in which the amendment can exist.

CCV?s brief contradicts what they said the amendment does during the 2004 campaign to pass it; something which the courts and mainstream media have noticed.

The CCV brief was written by their attorney David Langdon, who also co-authored the amendment.

Five of the seven Supreme Court justices heard the case. Chief Justice Thomas Moyer, and Justices Paul Pfeifer, Maureen O?Connor, Terrance O?Donnell, and Judith Lanzinger were joined by Tenth District Court of Appeals Judge Judith French, sitting for Justice Alice Resnick, who is retiring.

Justice Evelyn Lundberg Stratton was attending a funeral, but will review the oral arguments and participate in preparing the opinion.

Carswell?s side was argued by his attorney Thomas Eagle of Lebanon, Ohio. The state?s side was argued by Warren County Prosecutor Rachel Hutzel. Each side had 15 minutes.

Cohabitation same as marriage?

Eagle went first, and was immediately interrupted by Justice Pfeifer, who wanted to know how narrowly the domestic violence law should be applied.

Eagle responded that the domestic violence law ?runs afoul of ten words? in the amendment. ?You should only look at those ten words,? said Eagle.

?Legal status?? said Eagle of the law, ?I don?t see how you can say that it does not? create one. That prompted questions from Justice Lanzinger on how much the ?intent? of the amendment should be considered, as opposed to its ?plain meaning.?

Eagle wants ?plain meaning? to be more heavily considered.

?That characterizes it as broad, doesn?t it?? asked Lanzinger.

?The two sentences [of the amendment] are independent of each other,? replied Eagle. ?If you look at the amendments passed at the same time, Ohio was unique in putting in the second sentence.?

Justice O?Donnell wanted to know if Eagle is saying that the status of unmarried cohabiting individuals is the same as marriage.

?No,? said Eagle. ?The constitution prohibits recognition of cohabitation between unmarried individuals.?

Eagle then said that every cohabitation case would be defined as an approximation of marriage.

?Does that include inheritance?? asked O?Donnell. ?The logical extension of your argument is that it is the same as marriage.?

?If it?s common law, yes,? answered Eagle.

?But there is no common law [marriage in Ohio],? said O?Donnell.

?But the law has recognized unmarried couples,? said Eagle, ?and you cannot get a conviction of domestic violence on unmarried people unless you prove to the court that they are living together as a spouse.?

Eagle noted that roommates living together to share rent aren?t covered by the domestic violence law.

Justice Pfeifer interrupted, ?So what [the domestic violence law] really does is define who?s available to be a criminal defendant under that law.?

?How do you cohabit not as a spouse?? asked Pfeifer.

?College roommates,? replied Eagle.

?Does cohabitation imply a sexual relationship?? asked Pfeifer.

?It could, but it?s not necessary,? responded Eagle.

?In your view, is common law protected?? Justice Pfeifer asked, referring to marriages made before the law was repealed in 1991.

?Yes,? said Eagle, ?but that?s not the issue here.?

Voters intended a ban only

Prosecutor Hutzel was up next.

?What opposing counsel is arguing is that the 1979 domestic violence law has been repealed by implication,? she began, ?and this court has ruled that repealing by implication is not favored.?

?The court has to find that there is a conflict that cannot be reconciled? between the domestic violence law and the constitutional amendment, said Hutzel. ?In this case, they can be reconciled, so there is no way to meet that burden. And to do that, intent has to be looked at.?

(After the hearing, reporters asked Hutzel if CCV?s brief for the other side undermines her ?intent? argument. She dodged the question.)

?You can?t look at intent [of the amendment], you have to look at language,? interrupted Justice Lanzinger. ?It is what it says it is.?

?Wouldn?t it be easy for the General Assembly to remedy this with broader protection?? asked Lanzinger.

?I agree that we have no legislative history here, and no statement from the secretary of state,? said Hutzel. ?But look to the intent of [the amendment?s] supporters. [This position] is consistent with what voters were told, what the [Ohio Campaign to Protect Marriage] website said, and statements in the press [by CCV president Phil Burress].?

?The intent [of the amendment],? said Hutzel, ?was to prohibit marriage between people of the same sex. Sentence two is just to prevent municipalities from circumventing that.?

?What if it was drafted badly?? asked Judge French.

?That would be an unfortunate or unintended consequence,? said Hutzel. ?Again, we?re back to repealing by implication. We have to look at intent--what was said, and what was disseminated to the public.?

?We don?t have secretary of state statements in the record, do we?? asked Chief Justice Moyer.

?No,? Hutzel replied.

?Then why are we talking about it?? said Moyer.

?Justice Lanzinger is correct in that we have to look at the words,? Moyer continued. ?There are all sorts of reasons why people wanted the amendment adopted.?

?We can take from the plain language read is that nothing is explicitly said about repealing the domestic violence law, either,? Hutzel asserted.

?This is not a legal status,? said Hutzel, ?It is a classification of a victim.?

Hutzel, with help from Justice O?Connor, a former county prosecutor, then advanced her second argument, that the domestic violence victim cannot be a status, because it is limited to the criminal case at hand, and does not transfer to other courts, like probate courts.

?It?s merely a description of a victim, like a child under 13 in a sex abuse case,? said Justice O?Connor. ?Does that give them altered legal status??

?No,? answered Hutzel. ?It?s not portable.?

?What about status of the victim with regard to their rights?? asked Chief Justice Moyer.

?They have no legal status,? replied Hutzel. ?Statuses would follow them to other courts like tax courts and probate courts.?

?What about the victim compensation fund?? asked Moyer.

?It?s specific to that crime,? answered Hutzel. ?It cannot be used anywhere else, so it?s not a legal status.?

?Do you have any authority for the portability argument you are making?? asked Justice Lanzinger.

Hutzel did not, and later told reporters that she made it up.

During his rebuttal, Eagle said that the ?portability? argument is not in the amendment either.

The court?s ruling in the case, known as State of Ohio v. Michael Carswell, could come within the year.