Ohio Domestic Violence Law At Risk

Marriage amendment could void gay couple, straight live-in claims

A three-judge panel of the Ohio 2nd District Court of Appeals ruled by a 2-1 vote on March 24 that the state’s domestic violence law could not be applied to a non-marital household as a result of the anti-gay marriage amendment adopted by voters in 2004.

The ruling, in an opinion by Judge Mike Fain, upheld the dismissal of criminal charges against Karen Ward, who allegedly assaulted her “live-in boyfriend.” The domestic violence statute applies not only to spouses but to a person “living as a spouse” with another person. Although the Legislature originally intended this provision to extend protection under the law to unmarried mixed-sex partners, Ohio courts have construed it to apply to same-sex domestic partners as well. The statute provides special procedures and penalties for violence within a domestic relationship.

The state Defense of Marriage Amendment has two sentences. The first sentence limits marriage to opposite-sex couples, and the second says, “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.”

As soon as the amendment was passed, public defenders around the state started to raise it as a defense to domestic violence charges against unmarried cohabitants. Applying a law that speaks in terms of spouses to an unmarried couple, they argued, would be recognizing a “legal status” for those individuals. Trial courts differed over how to resolve this issue, but so far four other intermediate appellate courts in the state have issued rulings rejecting the argument and holding that the Defense of Marriage Amendment has no effect on the domestic violence law.

This new ruling is the first appellate ruling to take the contrary position.

“In our view,” Fain wrote for the court, “a ‘person living as a spouse,’ for purposes of the Domestic Violence statute, is the sort of quasi-marital relationship that the Defense of Marriage Amendment was concerned with.”

Fain pointed out that the amendment was enacted amidst “a popular concern in many parts of the country that the traditional concept of marriage as being a relationship between a man and a woman, having legal, cultural, and spiritual significance, was under attack,” and thus marriage needed to be “defended” by preventing the courts or the Legislature from providing any marital benefits to unmarried couples.

According to Fain, the second sentence of the amendment “appears to be an attempt to prevent the legal recognition of quasi-marital relationships for the purpose of approximating the design, qualities, significance, or effect of marriage.”

“The deep issue in this appeal is whether a statute giving one effect of a de jure marriage—the protection afforded a spouse from domestic violence by the other spouse—to a de facto marital relationship runs afoul of the amendment, or whether it, or other statutes or laws, would be required to give all of the effects of marriage to a quasi-marital relationship before running afoul of the amendment,” Fain wrote. “In our view, the only reasonable interpretation of the second sentence of the amendment is the former.”

Fain bolstered this position by arguing there would be a difficult line-drawing test if courts had to decide on a case by case basis whether a particular state law or policy involved enough of the “effects” of marriage to cross the line into prohibited recognition of a relationship. He suggested that if the Legislature wanted to protect unmarried couples without violating the amendment, it could change the law to apply to all people who were living together in the same house regardless of their relationships.

Judge Mary E. Donovan dissented, embracing the analysis used by the other courts of appeals.

Having created a split of authority among the Ohio intermediate appeals courts, this decision will likely lead to an appeal to the state Supreme Court to resolve the controversy. Proponents of anti-gay marriage amendments usually claim that their proposals would not affect anything except marriage laws, but the continuing uncertainty in Ohio about the application of the Domestic Violence statute shows the unintended consequences that can arise from the passage of ill-conceived constitutional amendments drafted by ideological lobbying groups.