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GAY PEOPLE'S CHRONICLE

Carswell

Continued from page 1

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 attor-

Ordination

Continued from page 4

announcing the vote. "We recognized from the very beginning of this movement that no single position can speak to all members of the community."

But Rabbi Joel Roth, one of the four members who resigned, said the decision was "outside the pale of acceptability" in Jewish law. Roth was author of the paper that upheld the ban.

The 25-member panel voted at the end of a two-day closed meeting in an Upper East Side synagogue. Students from Keshet, a gay advocacy group at the Jewish Theological Seminary, the flagship school of Conservative Judaism, huddled outside as they awaited the results.

Conservative leaders are facing the issue as they struggle to hold the shrinking middle ground of American Judaism, losing members to both the liberal Reform and the traditional Orthodox branches.

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December 15, 2006

ney 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

Reform Jews, as well as the smaller Reconstructionist branch, allow gays to become rabbis; the Orthodox bar gays and women from ordination. The Reform movement praised the committee's vote, while the Orthodox called it a rejection of "authentic Torah traditions."

The last major Law Committee vote on same-sex relationships came in 1992, when the panel voted 19-3, with one abstention, that Jewish law barred openly gay students from seminaries and prohibited rabbis from officiating at union ceremonies.

In this latest vote, the rabbis chose among five "teshuvot," or legal opinions. The two main opinions for and against lifting the ban received 13 votes each. An opinion needs only six votes to pass, allowing more than one paper to be accepted.

Rabbi Elliot Dorff, vice chairman of the panel and a co-author of the pro-gay legal opinion, argued that the biblical verse at the center of the debate-Leviticus 18:22, which states, "Do not lie with a male as one lies with a woman"-had been interpreted too broadly in the past.

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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 only a ban

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

December 29th

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.

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