Case Law Development: Ohio Courts Continue to Split on Constitutionality of Applying Domestic Violence Statute to Cohabitants

The Ohio Courts of Appeals continue to disagree regarding the impact of Ohio's Defense of Marriage Amendment on criminal domestic violence statutes.  See prior Family Law Prof Blog posts of June 13, 2006, and March 28, 2006.

This past week, the third appellate district joined the second district in holding that the criminal domestic violence statute is unconstitutional as applied to unmarried couples because the statute creates classifications based on the status of
a person as married or unmarried, and then protects the unmarried but cohabiting
persons as if they had the same legal status as a married couple. 

State v. McKinney,  2007 Ohio 587; 2007 Ohio App. LEXIS 541 (February 12, 2007).   
Opinion on the web (last visited February 14, 2007 bgf)

Just days earlier, the seventh appellate district came to the opposite conclusion, holding that "the criminal domestic violence statute, is predicated upon the factual determination of cohabitation, not the legal determination of marriage, and ... is not in conflict with the “Defense of Marriage” Amendment.  The majority of appellate districts have come to this same conclusion.

State v. Carnes, 2007 Ohio 604; 2007 Ohio App. LEXIS 562 (February 8, 2007)
Opinion on the web (last visited February 14, 2007)