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Ohio Court Interprets Its State Anti-Same-Sex Marriage Amendment:

The amendment, enacted in 2004, 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.

A preexisting state statute, Ohio Rev. Code 2919.25(A), provides, "No person shall knowingly cause or attempt to cause physical harm to a family or household member," with "family or household member" defined to include not just spouses and relatives, but also "a person living as a spouse," in turn defined to include "a person who ... is cohabiting with the offender," which is in turn defined as living together with "sharing of familial or financial responsibilities and ... consortium.... Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations." (I take it that when pushed on this, Ohio courts would require a sexual or at least a romantic relationship, or else siblings living together with "mutual respect, ... affection, ... society, cooperation, solace, comfort, aid of each other, [and] friendship" would be treated as "living as ... spouse[s].")

Defendant Michael Carswell was indicted for causing or attempting to cause harm to a woman with whom he was living but to whom he wasn't married. He argued this violate the anti-same-sex-marriage amendment because the treatment of people "living as ... spouse[s]" the same way as spouses involved the creation of "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." A trial court agreed with Carswell; the court of appeals reversed; and the Ohio Supreme Court agreed to hear the case.

In today's decision, the court held 6-1 (five Justices in the majority, one concurring in the judgment only) that "the second sentence of the amendment means the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage --- a marriage substitute" (emphasis added). A provision treating certain unmarried couples as legally tantamount to spouses for one purpose (domestic violence law) doesn't account.

This seems to me generally right. I'd say that a legal status that bears nearly all the attributes of marriage would probably count as "intend[ing] to approximate the design, qualities, significance or effect of marriage" (emphasis added), and I expect that if such a status was enacted and challenged, the court wouldn't feel entirely wedded to the "all of the attributes" language. But a legal status that focuses only on one consequence that accompanies various relationships, including marriage, just isn't an "approximat[ion]" of either the design, qualities, significance, or effect of marriage.

It's true that a test that focuses on whether the legal status has "nearly all" the attributes of the marriage is in some measure vague. But that's a vagueness that stems from the vague constitutional term "approximates." And the domestic violence law challenged in this litigation is very far from any gray zone.

Salixquercus (mail):
Michael Carswell was indicted for causing or attempting to cause harm to a woman with whom he was living but to whom he wasn't married...A provision treating certain unmarried couples as legally tantamount to spouses for one purpose (domestic violence law) doesn't account (sic).

Meanwhile it remains illegal in Ohio for persons of the same sex to have their intent to do anti-domestic violence recognized. IOW Carswell is legally barred from causing or attempting to create domestic bliss with a man with whom he might be living!

Wake me when the idiots are no longer in charge.
7.25.2007 8:05pm
Randy R. (mail):
I'm totally confused. Stopping gays from getting married means it's okay to beat your girlfriend but not your wife? Or stopping gays from getting married means you can do so?

I'm so confused about family values!
7.25.2007 8:11pm
Eugene Volokh (www):
Salixquercus: To be precise, Carswell is quite free to create domestic bliss with any male lovers of his. Of course, one can still argue that he should also be entitled to have the relationship treated as legally equivalent to marriage. (I have myself argued that states should recognize same-sex marriages.) But it's a matter of legally recognized vs. not recognized, not legal vs. illegal.

Randy R.: No need to be confused! No-one is taking the view that it is okay to beat your girlfriend but not your wife. No-one is even taking the view that "family values" require that beating your girlfriend should be mere assault rather than the more serious crime of domestic violence.

Rather, Carswell's lawyer made a creative argument; one lower court judge and one state supreme court judge agreed with him (as a matter of constitutional language, not family values); and three appellate judges and six state supreme court judges disagreed with him.
7.25.2007 8:22pm
BruceM (mail) (www):
To me it seems like the "tough on crime" / "anti-gay marriage" conservatives are trying to have it both ways here. And unfortunately, they won (probably due to a highly conservative Ohio Supreme Court).
7.25.2007 8:30pm
Hattio (mail):
It seems like the next step is to attempt to write and pass many separate laws; each establishing homosexual unions right to only one design, quality, significance or effect of marriage. For example, write a law allowing for intestate inheritance if folks have been in a continuing sexual union over, for example, two years or longer. Then write another law which says that those who have been in a sexual union can visit one another in a hospital. Write another that says employers have to provide health benefits to the same extent they do spouses of the married. Each law would only focus on one attribute, and should be legal. It would have the added benefit of confirming for those on the right that their denial of civil rights has consequences, and making them argue to affirmatively impose thos consequences on homosexuals as a burden. Watch the support for DOMA amendments melt away when you're talking about keeping family out of a hospital room, or turning children out into the cold. This is beautiful.
7.25.2007 8:30pm
Randy R. (mail):
I know, Eugene. I was just jokin' you!

The whole point of the amendment ostensibly was to 'protect' marriage. We see it has done nothing of the sort, but it has taken up a lot of court time for this silly argument. Marriage isn't any safer or better than before and I have yet to see anyone point to the amendment as having 'saved' someone's marriage.

Oh, but it DID get George Bush re-elected. Good going, gang....
7.25.2007 8:46pm
KeithK (mail):
An honest question here: why does Ohio need to have a specific statute outlawing and "attempt to cause physical harm to a family or household member"? Shouldn't beating up your wife already be covered under assault and battery? Unless the point is to enact stiffer penalties against domestic violence.
7.25.2007 8:47pm
deweber (mail):
Hattio:

Such an incremental approach may well be the best solution. Most people, as I see it, even those that oppose same-sex marriage find themselves supporting individual rights.

Part of the conflict is that the extremes want something different from what they say. The extreme right wants homosexuality to be a sin and not tolerated at any level. The extreme left of the issue wants same-sex marriage, not for the rights it gives, but for the implied acceptance of homosexuality as "normal". The extreme right will never accept it as normal and will fight tooth and nail against any action that they see as implying that it is. This is unresolvable and is causing the current crop of major conflicts.

But presented as as individual rights issue, all but the most extreme will agree that most, if not all, are reasonable, especially if it is written in a neutral way-say allow one to designate some person to control a very infirmed person.
7.25.2007 8:57pm
Eugene Volokh (www):
BruceM: Why "unfortunately"? The amendment barred only "legal status[es] for relationships of unmarried individuals that intend[] to approximate the design, qualities, significance or effect of marriage." A general purpose civil union would qualify; the status as cohabitant who is protected alongside a spouse by domestic violence statutes does not, it seems to me.

Couple this with the principle that one law is generally not seen as repealing another by implication unless there's pretty solid reason for interpreting it that way (something the majority points out), and you have an eminently sound court decision. What's your specific reason for criticizing it?
7.25.2007 9:00pm
Nels Nelson (mail):
There is also a side - I don't know if it counts as an extreme - that supports gay marriage yet doesn't want the government endorsing unmarried relationships. This position, to which I ascribe, opposes an incremental approach to legalizing gay marriage that would have the effect of encouraging couples - both straight and gay - to remain unmarried by providing them partial benefits.
7.25.2007 9:07pm
jimbino (mail):
"...if such a status was enacted and challenged, the court wouldn't feel..." PUKE!
7.25.2007 9:31pm
Fub:
Hattio wrote at 7.25.2007 7:30pm:
Watch the support for DOMA amendments melt away when you're talking about keeping family out of a hospital room, or turning children out into the cold. This is beautiful.
Capital idea, but I wouldn't count on it. Fearful and angry people often rationalize exceptional cruelty as necessary collateral damage in the war against their peculiar bĂȘte noire.
7.25.2007 9:41pm
BruceM (mail) (www):
Eugene, that's a very broad amendment, and to recognize the same-sex relationship and give any benefit to it, such as protection under the family violence code, seems contrary to the intent and meaning of the amendment. So the defendant in the criminal case should have won, as far as I'm concerned. I say "unfortunately" because I smell a patina of hypocrisy in the Ohio SC decision, and I hate hypocrisy of any kind, liberal or conservative. I'm a firm believer in "ideological estoppel". One day I'll get around to writing a big article on it.

FYI the Texas anti-gay marriage amendment is even more broadly worded than the ohio one. I think the Texas Constitution now, post gay-marriage amendment, prohibits common law marriage (which Texas has always had, and still does at the moment).

Anyway, we'll see what happens when some conservative anti-gay marriage amendment supporter drives his wife to lesbianism, and then claims that, when his ex-wife has found and is living with a wealthy lesbian life-partner, he should no longer have to pay her any alimony because she has functionally "re-married." That'll be innarestin'....
7.25.2007 10:50pm
Eugene Volokh (www):
Jimbino: Please take your "PUKES" elsewhere. It's bad enough when people chime in correcting others' grammar; it's considerably worse when they start throwing references to bodily discharges around. On the other hand, if my posts really are making you want to vomit, there is a simple solution to that problem.
7.25.2007 11:13pm
jimbino (mail):
Well, EV, you tried banning me before, and to no effect, thanks to the Circumventors. But I won't puke if you stop being so nauseous and emetic.

Easier to try to silence the critics than to change bad habits, huh?
7.25.2007 11:21pm
Eugene Volokh (www):
OK, jimbino, good-bye.

Folks: Since it looks like jimbino is not going to stay away, I'll probably have to delete future comments of his; my apologies in advance to those who might respond to him, and whose comments will then become hard to understand as a result of the deletion.
7.25.2007 11:56pm
baclaw (mail):
KeithK, I haven't looked into this recently, but I believe that Ohio subjects people who are guilty of a domestic assault differently than people who are guilty of simple assault. They may be subject to a higher penalty on the first offense of domestic assault (I'm not sure about this and disinclined to look it up right now), but what really separates this crime from simple assault is that subsequent offenses are treated as higher degree offenses, much in the same way that a second DUI is a more serious offense than a first DUI.

This addresses another issue raised by other commenters. Ohio does criminalize behavior in which one man physically harms another. That crime is an assault and the relationship between the men does not matter for the purposes of that crime. Thus, the only thing the decision practically does is to force prosecutors to try these cases as assault, rather than as a domestic assault. It does not decriminalize this kind of behavior.
7.26.2007 12:17am
Crunchy Frog:

Ohio does criminalize behavior in which one man physically harms another. That crime is an assault and the relationship between the men does not matter for the purposes of that crime.

Assuming that the law is indeed gender-specific ("man"), wouldn't that law become constitutionally suspect in the same way that VAWA was?

Besides, what you described is generally termed "battery". "Assault" is the act of attempting or threatening to injure.
7.26.2007 12:36am
Randy R. (mail):
EV: "my apologies in advance to those who might respond to him."

Apparently, when people make offensive comments and are called on the carpet for them, they seem to fall back on the Ali MacGraw rule: Love means never having to say your sorry.

Just take it as love, Eugene....
7.26.2007 12:38am
Cornellian (mail):
I've sometimes wondered how these state constitutional amendments would affect the situation of a man who live as husband and wife for 25 years, then when the husband dies the wife finds out she actually was never married to him at all because he had a prior marriage he never told her about, or he said he was divorced when he really wasn't (either lying or just mistaken). I think in that situation states have laws saying the woman can inherit as if she were a spouse even though she isn't. Depending on the wording of the state constitutional amendment, one would think such laws might be in danger of being unconstitutional.
7.26.2007 2:50am
jimbino (mail):
Eugene says: <i>OK, jimbino, good-bye.

Folks: Since it looks like jimbino is not going to stay away, I'll probably have to delete future comments of his; my apologies in advance to those who might respond to him, and whose comments will then become hard to understand as a result of the deletion.</i>

So that you folks won't be caught with dangling comments, I'll just continue to post, but under a different handle. You and EV will have fun trying to figure out which one is me.
7.26.2007 1:22pm
jpe (mail):
As one would expect, the usual parties were lined up as amici supporting the state. The only amicus brief for the guy that wants to weasel out of beating his girlfriend? Citizens for Community Values, a proponent of the amendment.

Charming, right?
7.30.2007 2:03pm