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Top Stories This Week in the Chronicle.
August 4, 2006

First ban amendment case reaches Ohio's high court

Columbus--The Ohio Supreme Court is getting ready to take its first look at the state�s constitutional amendment banning same-sex marriages.

The court will decide if the domestic violence law still applies to unmarried couples, both same- and opposite-sex, with the amendment in place.

Unmarried defendants in domestic violence cases argue that the 2004 measure voided the part of the law they are charged under.

About two dozen county and appeals courts throughout the state have ruled both ways on the issue, and the first of these cases has now reached the high court.

The decision in Michael S. Carswell v. State of Ohio will settle all of them, and provide a hint of how broadly the amendment will be interpreted on other issues.

Among these are parenting rights and domestic partner benefits, in cases that are also expected to reach the high court.

The amendment�s first sentence limits marriage to a man and a woman. The dispute is over the second one, intended to stop civil unions or domestic partnerships. It reads: �This state . . . 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.�

Defense attorneys claim that applying the domestic violence law to unmarried couples is recognizing a legal status, �cohabitation,� that approximates marriage.

Earlier court rulings, before the amendment, have used this definition of �cohabitation� to the benefit of lesbian and gay couples and their families.

Since the amendment, some courts, including the Warren County one in Carswell�s case, have dismissed domestic violence charges on this interpretation.

Prosecutors disagree, saying that only marriage approximates marriage, and that the voters never intended the amendment to apply to anything other than banning same-sex marriage. Cohabitation is an act, they argue, not a status.

Some courts have agreed with this analysis and allowed the domestic violence charges to stick.

Proponents and opponents of lesbian, gay, bisexual and transgender rights see this as an opportunity to either broaden or narrow the amendment�s effect on Ohio laws.

The anti-gay side wants the amendment to be interpreted broadly, so they can use it to stop things like domestic partner benefits, and make it more difficult for LGBT couples to bequeath property or care for children. These groups are siding with Carswell and the other unmarried domestic violence defendants.

LGBT equal rights groups want the amendment interpreted narrowly, so it has as little impact on unmarried couples as possible. These groups are siding with prosecutors.

Four groups have filed friend-of-the-court briefs in support of Carswell. They are Citizens for Community Values, the group that passed the amendment, the Ohio Association of Criminal Defense Lawyers, the Cuyahoga County Public Defender and the Mississippi Coalition Against Domestic Violence.

Fifty-two groups have filed briefs for the prosecution. They include 47 national and state domestic violence organizations, the Cuyahoga County prosecutor�s office, the Ohio Prosecuting Attorneys Association and the LGBT equal rights group Lambda Legal Defense, which filed in July.

Lambda�s brief was prepared by Cincinnati civil rights attorney Alphonse Gerhardstein.

None of the groups ask the court to find the amendment itself unconstitutional, though Lambda believes it is.

�A �legal status� signifies only those personal relationships made effective by law, such as the status of spouse, custodian, or guardian,� wrote Gerhardstein. �Legal statuses are terminable only by a judicial act or death . . .�

Gerhardstein goes on to distinguish �spouse� from �paramour,� stating that the latter �are not legally obligated to do anything for each other.�

�It is particularly nonsensical to argue that persons who cohabited years ago were intended by this law to be assigned, long after the fact, a legal relational status that had no other identified significance until one battered the other--at which point it permits the batterer to avoid responsibility,� argues Gerhardstein.

Gerhardstein also notes earlier Ohio Supreme Court decisions, including a 1992 case allowing a lesbian couple to share a common last name--something often done in a marriage--without giving any status to the relationship. These cases, he says, illustrate that the court has already shown how limited protections do not grant legal status.

�Indeed, while a cohabiting relationship may resemble a marital relationship in some respects (the parties may live together, share bank accounts, divide household chores, and/or sleep in the same bed), the distinction between a cohabitant and a spouse is the lack of a legal status that has been created and is recognized by the state.�

The other side argues that although the domestic violence law did not create a legal status, it recognized one--all centered around the �cohabitation� definition triggering, among other things, spousal support.

They also argue for a �plain read� of the amendment, saying that the domestic violence law �gives and requires the equivalence of marriage to unmarried persons� by making them eligible for protection or prosecution when violent conduct occurs.

Oral arguments in the Carswell case have not been scheduled. Ohio Supreme Court cases generally take at least a year to conclude.

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