The Ohio Supreme Court ruled in a 6-1 decision that the state's domestic violence statute "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 Ohio['s constitutional ban on same-sex marriages.]" At issue was language in the Ohio Constitution barring the state from creating or
recognizing a legal status for unmarried persons that “intends to approximate the design, qualities, significance or effect of marriage.” The majority interpreted this sentence to mean
"the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage – a marriage substitute." The constitutional bar would, however, prohibit the state from creating civil unions. "The second sentence of the amendment prohibits the state and its political subdivisions from circumventing the mandate of the first sentence by recognizing a legal status similar to marriage (for example, a civil union)," the court said.
The domestic violence statute in question extended benefits to a "person living as a spouse," which means "a person who is cohabitating with the offender, or who has cohabitated with the offender within the past five (5) years." The court interpreted the statute as merely recognizing a relationship an unmarried couple entered into without the state having a role in its creation as it does in the case of marriage. Accordingly, it did not find the state's domestic violence statute in conflict with the constitutional prohibition on same-sex marriages and civil unions.
A dissenting opinion in the case, however, makes it clear the issue remains muddy and is certainly open to different interpretations by different courts in other states facing similar questions. In Indiana, the operative language involves the "legal incidents of marriage." In Ohio, it involves the words, "legal status." The dissenting opinion criticizes the majority opinion for simply reading out the words "that intends to approximate the design, qualities, significance or effect" of marriage. "Presumably, under the majority’s reasoning, being unmarried does not give one a legal status," the dissent writes. "Yet unmarried persons living as spouses are covered by the domestic violence statute; they do attain a legal status, albeit a limited one, for each has standing under law to prosecute the other person for an act of domestic violence." [T]he General Assembly’s classification of a 'person living as a spouse' within the definition of 'family or household member' recognizes a legal status for purposes of the domestic violence statute." The dissent accuses the majority of interpreting the constitution by speculating about what may have been intended as opposed to its actual text.
The Indiana Law Blog has an extensive post on today's decision as well. You may recall that Kerry Blomquist of the Indiana Coalition Against Domestic Violence was an outspoken opponent of SJR-7 because of its potential unintended consequences. She cited the lower court decisions in Ohio as support for her argument. Blomquist provided the Indiana Law Blog this reaction to today's decision:
We are very pleased that Ohio can continue to prosecute unmarried batterers under their existing domestic violence statutes. The Ohio Supreme Court must be commended for recognizing and noting the legislative intents of both the DV statute and the Ohio Constitutional amendment. ICADV remains, however, very concerned with the wording of SJR 7 here in Indiana. As we have said before, the second clause referring to the "legal incidents of marriage" is still undefined and ambiguous, lending itself to a variety of judicial interpretations and a similarly lengthy legal challenge. The devil remains in the details.
As Blomquist notes and the Indiana Law Blog points out, there is a significant difference between the language in Ohio's amendment and Indiana's amendment. And as the dissent in the Ohio decision points up, the court would have reached an entirely different conclusion if it had simply relied on the constitution's text, an argument which conservative legal scholars like Justice Anthony Scalia often implore us to do. As I pointed out in an earlier post, a conservative Reagan-appointed judge raised serious concerns about the language of these amendments, particularly that proposed in SJR-7 which includes the term "legal incidents of marriage." Judge J. Harvie Wilkinson, III wrote:
In particular, it is unclear what "incidents" the amendment places outside state and federal constitutions. The incidents of marriage typically include certain government benefits and special property and inheritance rights, among others, but these rights are defined almost exclusively by the states. The amendment might change this, by making the "incidents" of marriage a constitutional term of art. Courts would have to decide whether the amendment governed the incidents of marriage however they are defined by state law -- meaning that the amendment would apply to differing benefits from state to state -- or whether the amendment required courts to develop a uniform federal definition of the incidents of marriage. Existing jurisprudence offers precedent for both interpretations. For example, the Fourteenth Amendment provides in part that no state shall "deprive any person of life, liberty, or property without due process of law." The Supreme Court has derived its definition of "property" under this amendment from state law, but permitted courts to give independent content to "liberty." Both approaches to the marriage amendment are possible, and judges would decide.
Nor would this be the end of the matter. If courts adopted a universal definition of marriage's incidents, what would they include? For instance, would a right be an incident of marriage if it were associated with marriage in every state, or in some proportion of states? Furthermore, under any approach, courts would need to decide whether incidents include only rights that are exclusive to marriage -- such as the special tax treatment given to married couples -- or whether they include rights made available on the basis of marriage and a few other special relationships, such as those relating to health insurance, hospital visitation, and rent control in many states. The interpretative difficulties run on and on.
The religious right will no doubt use today's Ohio decision to dispel concern about the wording of Indiana's amendment, but I think the words of caution urged by Judge Wilkinson should carry the day here in our future deliberations on SJR-7, an amendment which is not needed and is only intended to relegate a class of persons in this state to a second-class status. Jim Bopp, the religious right leader who attempted to mislead Indiana lawmakers about the language of SJR-7, had the audacity to put out this statement tonight in response to the Ohio decision. "This decision should put to bed the specious argument that a marriage amendment precludes domestic violence protections for unmarried couples," Bopp said. Mr. Bopp, Kerry Blomquist, Judge Wilkinson and others who have read the plain text of your SJR-7 aren't making specious arguments. Your attempt to write discrimination into our Indiana Constitution is a discredit to the legal profession of which you profess to serve. Have you no shame, Mr. Bopp?
In an unrelated decision today, the Michigan Supreme Court tossed a case challenging an Ann Arbor school district's domestic partner benefits plan under Michigan's constitutional prohibition on same sex marriages and civil unions. That decision did not hinge on the constitutionality of the benefits; rather, the case was dismissed on the basis of the standing of the taxpayers who brought the case. Lower courts have held that Michigan's constitutional prohibition bars units of government from extending domestic partner benefits to unmarried same-sex couples.