An Ohio Supreme Court Case Interprets the State's Anti-Same-Sex-Marriage Amendment:
How the Court Protected Unmarried, Cohabiting Couples from Domestic Violence Despite the Amendment

Ohio law criminalizes domestic violence, defining the offense as causing or attempting to cause physical harm to a "family or household member." Can one party to a same-sex couple avail himself or herself of this law's protection against the other, on the ground that he or she is a "family or household member"?

In Ohio v. Carswell, the Ohio Supreme Court answered yes. Its reasoning turned not only on the usual questions of statutory interpretation, but also on its construction of the state's anti-same-sex marriage constitutional amendment.

The Crime of Domestic Violence, as Defined by Ohio Law

Prior to the 1970s, domestic violence had no special place in the law. Prosecutors seeking to charge those who perpetrated abuse against a family member with a crime could only invoke the assault and battery statutes. Yet these laws that often did not provide sufficient protection against violence and threats of violence in the home. In addition, police and courts were hesitant to intervene in spousal relationships, so even laws that should have been applied often were not.

Beginning with Pennsylvania in 1976, however, every state adopted a law to make civil protection orders available to victims of domestic violence. Many states also tinkered with police procedures and other policies to make it easier for domestic violence victims to make use of applicable criminal laws. For example, they adopted mandatory arrest laws in such cases to ensure that a victim would not, after the police had departed, be forced to immediately face an abuser who was irate because she'd called the police.

In addition, some states began to separately define a crime of "domestic violence" or "domestic assault" - one element of which was an intimate relationship between perpetrator and victim. The Ohio provision at issue in Carswell is just such a law.

Section 2919.25 of the Ohio Code criminalizes "domestic violence," which it defines as the crimes of assault or menacing when directed at a "family or household member." (Assault is defined as knowingly causing or attempting to cause physical harm, or recklessly causing serious physical harm. The offense of menacing is defined as knowingly causing another to fear physical harm.)

The "What is a Family?" Question

A surprisingly large number of state and local laws - in areas ranging from zoning, to housing assistance, to rent control, to wrongful death, to name just a few -- make benefits, burdens, or criminal responsibility turn on family or marital status. The applicable statutes often use terms like "household member," "spouse," or "family" without defining them. Thus, courts are left to supply their own definition, and the definition often properly varies along with the purpose of the statute at issue.

Ohio's domestic violence law prohibits harming a "family or household member." The statute goes on to define those terms to include, among others, "a spouse, a person living as a spouse, or a former spouse of the offender."

A person "living as a spouse" is defined, in turn, as someone "who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question."

The Ohio Supreme Court Case: The Question It Raised

The case before the Ohio Supreme Court arose out of the February 2005 indictment of Michael Carswell, under section 2919.25, for one count of domestic violence. Carswell was alleged to have choked his live-in girlfriend, and thus plainly his "family or household member" as defined under the Ohio statute.

Carswell filed a motion to dismiss the indictment. He argued that the law, as applied to him, violated Section 11, Article XV of the Ohio Constitution, which provides:

"Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. 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."

(Emphasis added).

This amendment was adopted by Ohio Voters in the November 2004 elections; similar amendments have been adopted in twenty-six other states. Its purpose was to not only to prevent the adopting state from celebrating same-sex marriages, but also to prevent it from recognizing any other states' same-sex marriages as valid. (To date, only Massachusetts has legalized same-sex marriage, but at the time the amendment was passed, some observers anticipated other states' doing the same.)

But these goals were both accomplished by the first sentence of the amendment.

In the second sentence, Ohio's voters went even further, by also prohibiting the state from recognizing any status for unmarried individuals that approximates "the design, qualities, significance or effect of marriage." Plainly, Ohio was targeting civil unions and the like, which give the legal incidents of marriage but withhold the name "marriage" for the union.

Other states have similarly targeted civil unions with their amendments. But Ohio's amendment is unusual in that its broader reach is not limited to same-sex relationships. Rather, by its own terms, it applies to all "unmarried individuals".

Carswell's claim, then, is that Ohio's domestic violence statute violates Section 11, Article XV of the Constitution by, in effect, creating a "legal status" for unmarried couples where the victim lives as a spouse with the offender - but is not actually legally a spouse - and defining "living as a spouse" to include simple cohabitation.

Ohio v. Carswell: The Ohio Supreme Court's Opinion

In a 6-1 ruling, the Ohio Supreme Court rejected Carswell's claim.

For the majority, the key issue was what the amendment meant by "legal status," which neither the amendment nor any Ohio precedent had defined. (Black's Law Dictionary, however, defines a "status" as the "sum total of a person's legal rights, duties, liabilities, and other legal relations.")

The majority reasoned as follows: If, by granting domestic violence protection to unmarried couples, the legislature conferred a "legal status" upon them, then the law conflicts with the constitutional ban, and is void. In contrast, if the legislature merely granted such couples a legal right, without a concomitant status, then the domestic violence law can survive constitutional scrutiny.

Marriage itself is the quintessential "legal status," in that the exchange of "I dos" gives rise to a set of legal rights, duties, and liabilities, touching upon areas of law like inheritance, torts, evidence, divorce and property distribution, and so on. And clearly what the Ohio voters intended to accomplish with the amendment was to ban the legislature from creating a marriage-like status for same-sex couples.

Carswell argued that the domestic violence law had done just that, in violation of the amendment, by applying a special assault law to offenders who live "as a spouse" with their victim. However, the argument did not ring true to the majority, for two key reasons:

First, the domestic violence law did not simply equalize cohabiting couples with opposite-sex married couples with respect to domestic violence protection. Instead, it swept in many offender-victim pairs - such as two former spouses, a parent and a child, and co-parents, to name just a few.

Second, cohabitation itself is not typically a legal status. The law creates marriages, by issuing licenses and prescribing rules for solemnization. In contrast, people live together without any help (or hindrance) from the law at all.

The majority thus concluded that the domestic violence law "merely identifies a particular class of persons for the purposes of the domestic-violence statutes. It does not create or recognize a legal relationship that approximates the designs, qualities, or significance of marriage as prohibited by the [Ohio's constitution.]"

One Justice on the Ohio Supreme Court dissented, arguing that the constitutional amendment prohibits the creation of a legal status that approximates any one of marriage's attributes - its designs, qualities, significance, or effect of marriage. On this view, granting special protection against assault based on the relationship between the offender and victim is one of the "effects" of marriage.

The upshot of the majority's ruling is that Michael Carswell, a repeat offender, now faces up to five years for the assault of his girlfriend. In addition, other domestic violence victims will continue to enjoy the protection of the full, intended scope of the law.

That's good news -- but this case should never have gotten this far. (It did so in part because the trial court ruled in favor of Carswell, based on rulings from appellate courts in two prior, similar cases.) Surely the voters of Ohio did not contemplate that the amendment they passed would be used to deny a woman protection from a domestic abuser simply because the couple was not married.

Anti-Same-Sex Marriage Laws and Their Intended and Unintended Consequences

At this point, almost every state in the Union has enacted either a constitutional amendment, statute, or both, designed to prohibit the celebration or recognition of same-sex marriage. But some - like Ohio's - are drafted broadly to ban not only marriage, but any legal recognition of same-sex relationships.

As I have discussed in several previous columns such as this one, these laws are historically unprecedented -- particularly to the extent they seek to reach beyond marriage to all forms of legal recognition.

Moreover, these laws are in many cases poorly drafted, and likely to produce unintended consequences - such as the trial court's initial acceptance of Michael Carswell's argument that the amendment prevented his prosecution.

Another example comes from an appellate court in Michigan. In the case of National Pride at Work v. Governor of Michigan, that court recently ordered all public universities, state agencies, and local governments to cease providing health insurance to the partners of gay and lesbian employees because of a 2004 constitutional amendment stating that only a union of one man and one woman is valid "as a marriage or . . . for any purpose." A decision to opt to give equal health insurance benefits is very different from the compulsion to do so, and as in the Ohio case, it's unlikely that here, Michigan voters affirmatively intended, by their amendment, to prohibit the government from offering health insurance benefits in a fair and non-discriminatory way.

The intended consequences of such laws - to systematically deny rights to gays and lesbians based solely on animus against them - are bad enough. Their unintended consequences only pour salt into the wound these amendments create. Voters and legislatures should be cautious lest they discover that they have allowed irrational fear and hostility to menace the integrity of their state codes and constitutions.