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.
Related Posts (on one page):
- Michigan Supreme Court Domestic Partner Benefits Decision Available Online,
- Michigan Marriage Amendment Nixes Domestic Partners Benefits:
- Ohio Court Interprets Its State Anti-Same-Sex Marriage Amendment:
- Anti-Same-Sex-Marriage Being Used to Challenge Non-Marriage Benefits:
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.
I'm so confused about family values!
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.
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....
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.
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?
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'....
Easier to try to silence the critics than to change bad habits, huh?
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.
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.
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.
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....
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.
Charming, right?