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May 4. 2012

DeWine asks top court to toss marriage petition suit

Columbus--Ohio Attorney General Mike DeWine urged the Ohio Supreme Court on April 27 to dismiss a lawsuit challenging the petition summary for a proposed state constitutional amendment to recognize same-sex marriage.

The petition, filed by Freedom to Marry Ohio, was certified as a “fair and truthful statement” by DeWine on April 3, allowing them to proceed to the signature gathering phase. Roughly 385,000 signatures will be needed to get the amendment on the ballot in November 2013.

DeWine’s approval of the measure was challenged in an April 10 suit by the Ohio Campaign to Protect Marriage, the same group that backed the 2004 amendment which now bans same-sex marriage.

DeWine, who opposes same-sex marriage, defended his certification of the summary, and urged the court to dismiss the suit for lack of jurisdiction.

“In this particular case, the Attorney General was given specific summary language for a specific constitutional proposal,” DeWine wrote to the court. “Although that summary language may not detail every minute aspect of the amendment itself, the Attorney General believed that it was sufficient to allow a reasonable reader to determine what the legal effect of this amendment would be . . .”

The summary reads, “This amendment would repeal and replace Article XV, Section 11 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 present Section 11 is the 2004 ban amendment.

The new amendment, titled “The Freedom to Marry and Religious Freedom Amendment,” says: “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.”

The suit claims that the petition summary 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 last month that he believes that the certified petition language is “fair and accurate as far as it goes.” But the point about religious institutions not being required to “perform” a marriage as opposed to not being required to “recognize” a marriage is a valid one, and the strongest argument.

However, DeWine noted, “When examining whether the summary is fair and truthful, however, it is not required that the summary detail absolutely every item that the amendment could or would do. Instead, the summary must be detailed enough to allow a reasonable person to read and understand the amendment and then determine whether he or she would want to sign the amendment.”

“No reasonable person would believe it necessary to be given specific information in the summary that the amendment continues to ban marriage by partners of close consanguinity,” DeWine wrote. “Similarly, no reasonable person would believe it necessary to be told that the amendment would continue the state’s prohibition against bigamy. Finally, no reasonable person would feel they were deceived by omission or commission if they were told that religious institutions would not be required to perform certain marriage, but not told that those institutions would also not be required to recognize those marriages.”

Freedom to Marry Ohio’s CEO, former Rep. Mary Jo Kilroy, applauded DeWine for asking the court to dismiss the challenge.

“The Ohio Attorney General and the Ohio Ballot Board unanimously approved our petition language to give two loving adults the freedom to marry in Ohio,” Kilroy said in an April 30 release. “While a few extremists are filing frivolous lawsuits, thousands of our volunteers are going directly to the people to collect signatures for marriage equality.”

Lawyers for Freedom to Marry Ohio will also file a dismiss-and-expedite motion with the Ohio Supreme Court.

Related stories

Suit challenges marriage ban repeal’s petition text  April 20, 2012

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