Tuesday, June 13, 2006

Case Law Development: Another Ohio Appellate Court Holds Domestic Violence Statute Unconstitutional under Ohio's Defense of Marriage Amendment

Yet another Ohio Court of Appeals court has held that the Ohio Defense of Marriage Amendment makes it unconstitutional to hold an individual criminally liable under the domestic violence act when their victim is not their spouse.  Some excerpts from the opinion:

"We conclude that the "person living as a spouse" provision of R.C. 2919.25 does violate the Defense of Marriage Amendment. We note that this court is required to apply the law. The voters of the State of Ohio voted in favor of a new constitutional amendment, which created adverse ramifications and unintended consequences in many unexpected areas of the law. We are not inclined to reconcile the language of the statute with politically correct standards, in effect, defining public policy. This court is duty-bound to apply the law. Public policy is the prerogative of the legislature. We also note that after our decision today, heterosexual cohabitants are not left unprotected. An appropriate remedy may be sought by filing assault or other charges against the offender in accordance with chapter 2903 of the Revised Code.

Because today's decision is in conflict with State v. Newell, 5th Dist. No. 2004CA00264, 2005 Ohio 2848; State v. Carswell, 12th Dist. No. CA2005-04-047, 2005 Ohio 6547; State v. Burk, 8th Dist. No. 86162, 2005 Ohio 6727; State v. Rexroad, 7th Dist. Nos. 05-CO-36, 05-CO-52, 2005 Ohio 6790; State v. Nixon, 9th Dist. No. 22667, 2006 Ohio 72; and State v. Rodgers, 10th Dist. No. 05P446, 2006 Ohio 1528, we certify the record of this case to the Ohio Supreme Court for review [**19]  and final determination on the following question: Does the legislature's use of the term "person living as a spouse" to define "a family or household member" under R.C. 2919.25, "create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage" in violation of the Defense of Marriage Amendment, Section 11, Article XV of the Ohio Constitution?"

State v. Logsdon, 2006 Ohio 2938 (June 12, 2006) bgf

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