Ohio Appeals Courts Split on Application of Ohio Marriage Amendment in Domestic Violence Cases

This week one of the 12 Ohio appellate courts ruled that the Ohio marriage amendment bars prosecution of domestic violence cases involving unmarried partners. News reports here, here, and here.

This is the fifth of the 12 appeals courts in Ohio to rule on this issue. The first four appellate decisions went the other way. See this decision, for example. It will take a decision of the Ohio Supreme Court to resolve the conflict and determine the issue once and for all.

The following is excerpted from the decision of Ohio's 2nd District Court of Appeals, located in Dayton, in the case of State of Ohio v. Karen Ward:

This appeal concerns the issue of whether the provision in the domestic violence statute extending the protections of that criminal statute to "a person living as a spouse" offends the Defense of Marriage amendment to the Ohio Constitution adopted by the voters in 2004 because it recognizes "a legal status for relationships of unmarried individuals that intends to approximate the effect of marriage."

We conclude that it does.

Let us suppose that the (Defense of Marriage) amendment were given the more restrictive interpretation. The evident purpose behind the second sentence of the amendment — to prohibit the indirect recognition of non-traditional marriages — could die the death of a thousand cuts. Imagine the adoption of a testimonial privilege for quasi-spouses, the addition of quasi-spouses alongside spouses and children as beneficiaries in wrongful death actions, the addition of quasi-spouses to the class of family members who can recover for loss of consortium, or the addition of a quasi-spouse to the list of persons who must be notified of a woman's intention to have an abortion.

The list is endless.

At what point would the second sentence of the amendment be deemed to have been violated? Would only the last in the series of legislative enactments, common law rulings, and administrative or judicial rule-making be voided for unconstitutionality?

Suppose that, after a long series of legal struggles to enhance the rights of non-traditional, quasi-spouses, the only remaining point of difference in Ohio between a spouse and a quasi-spouse were that the spouse, but not the quasi-spouse, could claim an additional $25 credit on the Ohio income tax? Would that avoid implicating the second sentence of the amendment because actual spouses and quasi-spouses are not treated identically for all legal purposes in Ohio?

In our view, the jurisprudence contemplated by the hypotheticals recited above would be unworkable. The general principle evident in the second sentence to the Defense of Marriage amendment is that a legal status of a de facto marital relationship shall neither be created nor recognized in Ohio as having the same effect as the legal status of a de jure marital relationship. It is tempting to speculate which of potential exceptions to this general principle would have found favor with a majority of the Ohioans who voted for the Defense of Marriage amendment, but this would be mere speculation.

In our view, the second sentence was intended to avoid the prospect of the Ohio General Assembly, or the Ohio courts, establishing exceptions to its reach.

Note to Victoria Cobb ... time to update your website FAQs.

My Blog Roll -- Women Bloggers Worth Reading

So, I've been following all the chatter about blog rolls, see here and here for example, and I thought, "maybe I should have a blog roll?"

Not wanting to get into the fight about who's influential and who's not ... lots of self-congratulating and back scratching going on there ... I decided that I'd post a blog roll of women bloggers who I think are worth reading. Some I've listed are political, some not. Some are in Virginia, some not.

If you've read a woman blogger who makes you laugh or think, send the link along.

I'm always looking for something new that's worth reading.

Lilly Tomlin -- Worrying About Same Sex Marriage

I heard Lilly Tomlin tonight speak to a conference of women business owners. During her performance she said:

"I worry about same sex marriage. If all of us gay people keep imitating straight people, what's next? Monster truck rallies?"

LOL

52% of the Population Deserves Better When It Comes to Judicial Appointments

There's been much hand wringing and teeth gnashing this session about the likely failure of the General Assembly to replace retiring chief judge of the Court of Appeals, The Honorable Johanna Fitzpatrick, with another Northern Virginian. As Not Larry Sabato reports, some members of the Fairfax Bar Association have gone so far as to call the leading non-Northern Virginia candidates "unqualified" -- an assessment attacked as politically inspired.

Unnoticed and unremarked, however, is that none of the five people interviewed to replace Judge Fitzpatrick (and another retiring Judge) was a woman. Meaning that the number of women on the Appeals Court will drop from 3 of 11 to 2 of 11 (a number clearly heading the wrong direction).

Nor was any of the three candidates interviewed for three circuit court judgeships open this year a woman. Nor was any of the candidates interviewed for four district court vacancies a woman. And, only two of 10 candidates interviewed for six juvenile and domestic relations court vacancies were women (and two of the judges being replaced were women meaning that the best we can hope for is not to lose ground).

Here's the list of those interviewed this year:
Appeals Court
Randolph A. Beales
Judge Victor V. Ludwig
Judge R. Terrence Ney
William G. Petty
Judge John E. Wetsel, Jr.

Circuit Court
James C. Hawks
Josiah Thomas Showalter, Jr.
Judge Alfred M. Tripp

General District or Juvenile Court
R. Glennwood Lookabill
S. Clark Daugherty
Ashley K. Tunner
Robert S. Brewbaker, Jr.
J. Frank Buttery, Jr.
Ronald L. Napier
Steven T. Buck
Margaret W. Deglau
Richard S. Wallerstein, Jr.
Edward S. Whitlock, III
Jimmy Don Bolt
Croxton Gordon
Thomas B. Dix, Jr.

As of 2003, women comprised about 30% of the legal profession and 49% of the law school graduates. At large firms, 16% of the partners were women in 2003. That last number makes our declining percentage of appellate judges look acceptable at 18%, but certainly our goal ought to be higher, and we should certainly be trying not to lose ground.

It is simply not okay for the legislature not even to seek to interview a more diverse pool of candidates, particularly when they are replacing some of the few women already serving on the bench.

The House and Senate Courts Committees who interview the candidates to assure that they are qualified (before the Republican House and Senate Caucuses decide whom to elect) need to do a better job of identifying qualified women and minority candidates for Virgina's judgeships.

The majority of residents of Virginia who are women deserve to have a judiciary that better reflects our presence among potential litigants.

After all, shouldn't majority rule?

Bloggers to be Left on the "Digital Dirt Road"?

The national blogs are all a buzz about legislation that would end "net neutrality" and allow major internet providers to provide better and speedier net access to paying customers.

Here's a post from the Guerilla News Network that explains the proposals now pending in Congress:

In the federal government in Washington, the main legislation concerning the media in the United States – the Telecommunications Act – is being rewritten, and the fate of net neutrality (and perhaps the future of the internet) rests in the balance. Unfortunately, Net neutrality clauses have been struck out of the most recent draft of the Telecom Act.

GNN describes the proposals as ones that will relegate bloggers and other nonpaying net consumers to the "digital dirt road."

Doesn't sound good to me.