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.