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.