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April 20. 2012

Suit challenges marriage ban repeal’s petition text

Columbus--The group that passed Ohio’s marriage ban amendment eight years ago has filed suit against the petition text for a proposed new amendment that would repeal it and recognize same-sex marriage.

The challenge was filed in the Ohio Supreme Court on April 10 by the Ohio Campaign to Protect Marriage, which backed the 2004 amendment, and its representative Lori Viars. She is a Republican activist and heads the Warren County Right to Life organization.

Attorney General Mike DeWine certified the petition language, sponsored by Freedom to Marry Ohio, on April 3. The group is working to put the measure on the ballot in 2013.

The complaint alleges that the text is not fair and truthful and should not have been certified. If the high court agrees with Viars, Freedom to Marry Ohio will need to start over with different language.

The suit names DeWine and petitioners Ben Deutschle, Julie Driscoll, Andrew Murphy, Jennifer Stack, and Kasey VanBuskirk, all of the Columbus area.

The court has given them until May 4 to answer the complaint. DeWine will have to defend his decision to certify the petition language, and the petitioners will have to support their language choice.

“Although we have not seen the lawsuit, we are not surprised that there are opponents trying to stop the campaign,” said Freedom to Marry Ohio CEO Mary Jo Kilroy in a release. “We will continue to exercise our right to petition. We believe Ohio voters will support the proposed amendment which allows the freedom to marry while recognizing the rights of religious institutions.”

As of April 16, DeWine had not been served the complaint and would not comment.

The text DeWine approved replaces language he rejected in March. It includes a summary and the amendment, titled “The Freedom to Marry and Religious Freedom Amendment.”

The summary reads, “This amendment would repeal and replace Section 11, Article XV of the Constitution to:

“1. Allow two consenting adults freedom to enter into a marriage regardless of gender;

“2. Give religious institutions freedom to determine whom to marry;

“3. Give religious institutions protection to refuse to perform a marriage.”

The actual amendment states: “Be it resolved by the People of the State of Ohio that Article XV, Section 11 of the Ohio Constitution be adopted and read as follows: Section 11. In the State of Ohio and its political subdivisions, marriage shall be a union of two consenting adults not nearer of kin than second cousins, and not having a husband or wife living, and no religious institution shall be required to perform or recognize a marriage.”

Viars and OCPM are represented by attorney David Langdon and his law partner Joshua Bolinger of Sharonville, Ohio, and James Campbell from the Alliance Defense Fund of Scottsdale, Arizona.

Langdon authored the 2004 amendment the new proposal would repeal. The Alliance Defense Fund fights against LGBT equality around the nation. On the complaint, Viars lists her address as the office of the anti-gay Citizens for Community Values in Sharonville, a Cincinnati suburb. CCV organized and funded the 2004 marriage ban campaign.

The complaint says the summary certified by DeWine is “unfair, misleading or untruthful” because:

“A. It falsely states that the proposed constitutional amendment would give religious institutions the freedom to determine whom to marry;

“B. It states that under the proposed constitutional amendment religious institutions would not be required to perform a marriage, but it selectively and arbitrarily omits that under the amendment religious institutions would not be required to recognize a marriage;

“C. It states that the constitutional amendment would allow two consenting adults to marry regardless of gender, when in fact it would allow two consenting adults of the same gender to be married, and would only allow two consenting adults to marry if they are not nearer of kin than second cousins and they do not have a husband or wife living; and

“D. It does not adequately alert prospective signers to the language of the Constitution that would be repealed by the amendment.”

Capital University Law School professor Mark Strasser said he believes that the certified petition language is “fair and accurate as far as it goes,” but the point raised about religious institutions not being required to “perform” a marriage vs. not being required to “recognize” a marriage is a valid one, and the strongest argument.

Strasser said courts will later have to interpret whether or not a religious organization will be required to recognize the same-sex spouse of an employee.

“Needless to say,” said Strasser, “not all questions are addressed in summaries. For example, it was a matter of some dispute whether Ohio’s marriage amendment precluded domestic violence protections for non-marital partners until the Ohio Supreme Court resolved that issue.”

“It’s a summary,” said Strasser. “At one point in the complaint they note it’s too long, while calling for it to tell them more. They can’t have it both ways.”

Challenges to petitions like this one are not common but they do happen, both before and after measures get on the ballot.

In May 2004, Thomas Rankin and Raymond Zander of Westlake filed a similar suit against then Attorney General Jim Petro and Viars, alleging that the petition summary for the marriage ban amendment was not fair and truthful. Langdon represented the petitioners in that suit.

In August 2005, long after the constitutional amendment passed, the Tenth District Court of Appeals ruled that the action was moot because the petitions had already been circulated and the constitution had already been amended.

In that case, however, the trial judge ruled that the summary was misleading and “the attorney general improperly certified the summary.”

All three appellate judges in that case opined that the trial judge did not have the jurisdiction to even consider whether or not the petition summary language was fair and truthful.

“[The legislature] vests the authority to determine whether a submitted summary constitutes a fair and truthful statement of a proposed matter solely in the attorney general,” wrote the panel.

In effect, that decision took away the right to challenge the summaries on future petitions, which the Supreme Court could reverse with this decision.

Related stories

National Freedom to Marry will not back Ohio effort April 4, 2012

Ohio marriage petition drive moves forward March 23, 2012

Equality Ohio cautious on marriage measure March 9, 2012

Petitions would bring marriage to Ohio February 24, 2012

The lessons of Issue 1: Ohio needs better statewide preparation for the next ballot issue, leaders say January 14, 2005

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