{¶ 3} The trial court held a hearing on the motion on August 29, 2005. The court dismissed the charge on December 19, 2005, on the grounds that the statute was unconstitutional as applied. This timely prosecutor's appeal followed.
{¶ 5} R.C. §
{¶ 6} In Ohio, it is well-settled that legislative enactments are presumed to be constitutional. State ex rel. Dickman v. Defenbacher
(1955),
{¶ 7} A statute may be challenged on constitutional grounds in two ways: (1) that the statute is unconstitutional on its face, or (2) that it is unconstitutional as applied to the facts of the case. Harrold v.Collier,
{¶ 8} The rules employed in statutory construction also apply to the construction of constitutional provisions. State v. Jackson,
{¶ 9} This Court has already ruled in two earlier cases that the criminal domestic violence statute, R.C. §
{¶ 10} On November 2, 2004, the voters of the State of Ohio approved the "Defense of Marriage" Amendment to the Ohio Constitution. This amendment became effective on December 2, 2004. The Amendment defines marriage in Ohio and states:
{¶ 11} "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."
{¶ 12} The issue in this appeal is whether the criminal domestic violence statute conflicts in whole or in part with the "Defense of Marriage" Amendment, as applied to the facts of this case. Ohio's Domestic Violence statute, R.C. §
{¶ 13} "(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
{¶ 14} "(B) No person shall recklessly cause serious physical harm to a family or household member.
{¶ 15} "(C) No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.
{¶ 16} "(D) (1 ) Whoever violates this section is guilty of domestic violence."
{¶ 17} The Ohio Domestic Violence statute defines family or household member to include any of the following who live with or have lived with the offender:
{¶ 18} "(F) As used in this section and sections
{¶ 19} "(1 ) 'Family or household member' means any of the following:
{¶ 20} "(a) Any of the following who is residing or has resided with the offender:
{¶ 21} "(i) A spouse, a person living as a spouse, or a former spouse of the offender;
{¶ 22} "* * *
{¶ 23} "(2) 'Person living as a spouse' means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question."
{¶ 24} It is undisputed that Appellee was not married to the victim at the time of the crime and that he qualifies as a "person living as a spouse" pursuant to this definition.
{¶ 25} In Gough v. Inner, this Court reviewed whether the statute providing for a DVCPO was in conflict with the Defense of Marriage Amendment. Gough v. Inner, 7th Dist. No.
{¶ 26} In Gough, after comparing the DVCPO statute and the Defense of Marriage Amendment, we concluded that the two were not in conflict:
{¶ 27} "After reviewing these statutes and the caselaw, we conclude that R.C.
{¶ 28} "'"Marriage" is a status created by operation of law.'Langer v. Langer (1997),
{¶ 29} "The law recognizes the special nature of marriage in many ways. For instance, only married couples have the right to a dower interest, R.C.
{¶ 30} "In the eyes of the law, marriage is a special status which confers many rights and benefits upon the parties to a marriage. R.C.
{¶ 31} The reasoning that we used to affirm the constitutionality of the DVCPO statute applies equally as well to the criminal domestic violence statute. If a legal status is created for cohabiting couples under the criminal domestic violence status, that status does not approximate the many-faceted legal status that accompanies the marital state. As such, the criminal statute does not conflict with the constitutional provision. We note that most other courts that have dealt with this issue have concluded that R.C. §
{¶ 32} The Second and Third District Courts of Appeals, though, have both held 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.McKinley, 3rd Dist. No. 8-05-14,
{¶ 33} Even though this Court's ruling in Gough did not directly address the precise issue raised in the instant appeal, its reasoning is applicable in the determination as to whether the criminal domestic violence statute conflicts with the Defense of Marriage Amendment. Based on the reasoning in Gough, there is no conflict between the statute and the constitutional provision, and Appellant's assignment of error is sustained. The judgment of the trial court dismissing the domestic violence charge is reversed, and the case is remanded to the trial court for further proceedings according to law and consistent with this Court's Opinion.
Vukovich, J., concurs. DeGenaro, P.J., concurs.