Case Law Development: Ohio Supreme Court rules that domestic violence laws don't conflict with a state ban on gay marriage

Settling an issue that has split the Ohio Supreme Courts (see 2/15/07 Family Law Prof post), the Supreme Court of Ohio has upheld the constitutionality of the state's criminal domestic violence laws as applied to unmarried couples.  In a 6-1 decision, the Ohio Supreme Court ruled that the domestic violence law does not conflict with the state's same-sex marriage ban merely because it protects unmarried cohabitants by extending protection to persons living together 'as a spouse.' Chief Justice Thomas Moyer said in the opinion that lawmakers included many groups under the domestic violence law, not just unwed couples, and that describing people's living arrangements isn't the same as creating a law approximating marriage. Ohio's constitutional amendment goes beyond merely prohibiting same-sex marriage but also prohibits the government from creating any approximations to marriage. 'The state does not create cohabitation; rather it is a person's determination to share some of life's responsibilities with another that creates cohabitation,' Moyer wrote. 'The state does not have a role in creating cohabitation, but it does have a role in creating a marriage.'  In considering what would be legislation that violates the amendment, the court pointed to civil unions: “The second sentence of the amendment prohibits the state and its political subdivisions from circumventing the mandate of the first sentence by recognizing a legal status similar to marriage (for example, a civil union).”

State v. Carswell, ___Ohio St.3d___, 2007-Ohio-372 (July 25, 2007)
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