Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, December 16, 2005

Case Law Development: Domestic Abuse Statute Does not Violate Ohio Constitution's Defense of Marriage Amendment

The Ohio Court of Appeals found that Ohio's criminal domestic violence statute, which criminalizes domestic violence against spouses and persons "living as a spouse" did not violate the Ohio Constitution's Defense of Marriage Amendment.  The constitutional amendment defines marriage and provides that the 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" The trial court had determined that the domestic violence statute was unconstitutional as applied to unmarried, cohabiting individuals because it conferred a "marital-type" status to such individuals The Court of Appeals reversed, finding that the statute does not create a legal status approximating marriage. "The statute does not confer or take away from a cohabitant a set of legal rights. "The statute's scope is very narrow; it defines the conduct that constitutes the crime of domestic violence, and sets forth categories of individuals considered potential victims under the statute. The statute classifies a cohabitant as one of many potential victims. We do not find that such classification creates a legal status for relationships between unmarried, cohabiting individuals....[the statute] does align unmarried, cohabiting persons with married persons in the sense that individuals in both groups can be classified as offenders or victims under the statute. However, such alignment does not amount to the creation or recognition of a legal status "that intends to approximate the design, qualities, significance, or effect of marriage."

State v. Carswell, 2005 Ohio 6547; 2005 Ohio App. LEXIS 5903 (December 12, 2005)
Opinion on the web at (last visited December 14, 2005 bgf)
Other resources available on the web include Lambda's amicus brief and articles on this and related Ohio litigation in the Cincinnati Enquirer.

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