Family Law Prof Blog

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

Tuesday, March 28, 2006

Case Law Development: Constitutionality of Applying Ohio's Criminal Domestic Violence Laws to Unmarried Couples

As reported in our news blog posting of March 26th, the Ohio Court of Appeals for the second appellate division has now framed up the issue of whether Ohio's Constitution prohibits charging unmarried individuals with domestic violence crimes when they batter their paramours.  Two other Ohio courts of appeals have held that the constitutional amendment that prohibits extending the benefits of marriage to unmarried couples was not intended to apply to criminal domestic violence laws.  (See case development posts of December 27th and December 16th of last year). Now the second appellate division has provided the contrary view. 

The court agreed with the general principal applied by its sister courts that statutes should be construed as consistent with the constitution if possible, but in this court's opinion, the court was not authorized to construe both the statute and the constitution so as to avoid a conflict. The court found the plain language of the Defense of Marriage amendment requires that "a legal status of a de facto marital relationship shall neither be created nor recognized in Ohio as having the same effect as the legal status of a de jure marital relationship."  The court was unwilling to accept an argument that some of the incidents extended to married couples (such as protection from domestic violence) were not intended to fall within the scope of the amendment, since the amendment itself is without these exceptions.  As the court noted, "It is tempting to speculate which of potential exceptions to this general principle would have found favor with a majority of the Ohioans who voted for the Defense of Marriage amendment, but this would be mere speculation. In our view, the second sentence was intended to avoid the prospect of the Ohio General Assembly, or the Ohio courts, establishing exceptions to its reach. In this connection, it is useful to remember that the Defense of Marriage amendment was proposed, and adopted, amidst concerns that the concept of traditional marriage was being eroded by judicial rulings, among other factors."

Applying this interpretation to the Ohio criminal domestic violence statute, the court concluded that the statute's protection of a "person living as a spouse," created exactly the sort of quasi-marital relationship that the Defense of Marriage amendment was designed to prohibit.

State v. Ward, 2006 Ohio 1407 (March 24, 2006)
Opinion on the web (last visited March 27, 2006 bgf)

Excerpts from the opinion:  "The deep issue in this appeal is whether a statute giving one effect of a de jure marriage -- the protection afforded a spouse from domestic violence by the other spouse -- to a de facto marital relationship runs afoul of the amendment, or whether it, or other statutes or laws, would be required to give all of the effects of marriage to a quasi-marital relationship before running afoul of the amendment. In our view, the only reasonable interpretation of the second sentence of the amendment is the former."

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