Ohio Gay Marriage Amendment Violates 14th Amendment

A Ohio district court judge has ruled that the state’s constitutional ban on gay marriages, which was approved overwhelmingly by the state’s voters last year, violates the equal protection clause of the 14th Amendment of the U.S. Constitution as applied to victims of domestic violence reports the Cleveland Plain Dealer.

The Ohio gay marriage amendment is similar but not identical in language to SJR-7, Indiana’s proposed amendment. The Ohio amendment limits marriage to the union of “one man and one woman.” It contains a second provision barring state and local governments from “creating or recognizing any legal status for relationships of unwed partners that intends to proximate the design, qualities, significance or effect of a marriage." It is the latter provision that is at issue.

Ohio’s domestic violence statute allows a victim automatic access to a protective order against the accused, which the police must enforce. The law applies to domestic violence victims of unmarried partners living together, whether of the same sex or not, as well as married partners.

Judge James Celebrezze found that the domestic violence law violated the Ohio’s gay marriage amendment because it “clearly grants a ‘legal status’ to a cohabiting relationship.” Because the domestic-violence law cannot apply to unmarried couples living together, Judge Celebrezze found that an assault victim in a co-habitating household is not treated equally under the law as the 14th Amendment requires. He said it was “nearly impossible to divine” a “rational basis” for the state to discriminate against co-habitating domestic violence victims.

Judge Celebrezze was less than charitable in explaining the rationale behind the gay marriage amendment. He called it “political gimmickry.” He explained that the architects of the amendment drew it up "to guarantee that a certain demographic of voters would turn out in large numbers at the polls to vote in the presidential election." Supporters of the gay marriage amendment immediately dubbed Celebrezze an “activist judge” for making the ruling.

If SJR-7 is adopted in Indiana, similar issues could arise under Indiana’s Civil Protection Order Act. In addition to defining marriage as between one man and one woman, SJR-7 contains language very similar to Ohio’s amendment. It provides that the “Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.” Indiana’s Civil Protection Order Act arguably does just this when applied to an unwed victim co-habitating with another person.