Tuesday, March 28, 2006

Interpretation of the marriage amendment in Ohio

Ohio has adopted a marrriage amendment. One of the issues that has arisen is whether its "second sentence" would forbid the application of domestic violence laws to unmarried couples. Until now, every court of appeal in Ohio that has considered the issue have said that the amendment does not prohibit application of domestic violence laws to cohabitating couples, but now one has.

Whatever happens in Ohio may not mean much for what might happen in Wisconsin, Our "second sentence" is not the same as Ohio's. In Ohio, the legislature is forbidden to recognize a legal status that "intends to approximate the design, qualities, significance or effect of marriage." In Wisconsin, it would be forbidden to recognize a status that is identical or substantially similar to marriage.

By focusing on the status itself rather than its incidents, the Wisconsin language is arguably more narrow.

But the issue is out there.

1 comment:

Anonymous said...

Rick, You seem to be interpreting the second sentence in two different ways.

Earlier you write, "While I think the most plausible reading of 'legal status' is a bundle of rights and responsibilities created by the government and not contractual rights privately agreed upon, this could have been set forth more clearly."

But in this post you argue that the Wisconsin sentence is narrower because it doesn't focus on a bundle of incidents, but on a "legal status."

I don't understand why this is not a contradiction.

It seems to me "legal status" is exactly what the sentence emphasizes. So, if this ban passes it will become unconstitutional for a district attorney to treat an unmarried couple involved in domestic violence "identical or substantially similar to" the way it treats a married couple. To do so would be to create a de facto marriage-like "legal status" for that unmarried couple. Hence, it becomes unconstitutional to provide that unmarried couple with the same programs of counselling and punishment that currently are in place for domestic violence situations.

I'd also like to point out that, while you earlier say you doubt our ban would take away existing health care benefits, your fellow attorneys at the Alliance Defense Fund are already emphasizing "legal status" language in their lawsuits against public employee health benefits in Ohio and Michigan. This posting has more to say about that.