{¶ 2} The following facts are undisputed: On May 14, 2005, appellant and his girlfriend, Tanya Flick, were involved in a physical altercation. Appellant and Flick shared a home and were involved in a romantic relationship; however, at the time of the incident, the couple was unmarried.
{¶ 3} On May 16, 2005, appellant was charged with domestic violence in violation of R.C.
{¶ 4} "The trial court erred when it denied the defendant-appellant's motion to dismiss and found R.C.
{¶ 5} The constitutionality of a statute is a matter of law which an appellate court reviews de novo. Akron v. Callaway,
{¶ 6} Appellant's sole assignment of error challenges the constitutionality of R.C.
{¶ 7} "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." Section
{¶ 8} The amendment, by its plain language, prohibits the state from granting a legal status, irrespective of gender, to unmarried persons where that status intends to approximate marriage.
{¶ 9} R.C.
{¶ 10} "(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
{¶ 11} "* * *
{¶ 12} "(F) As used in this section and [R.C] 2919.251 and 2919.26 * * *:
{¶ 13} "(1) `Family or household member' means any of the following:
{¶ 14} "(a) Any of the following who is residing or has resided with the offender:
{¶ 15} "(i) A spouse, a person living as a spouse, or a former spouse of the offender;
{¶ 16} "* * *
{¶ 17} "(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." (Emphasis added)
{¶ 18} A victim's status as a "family or household member" is an element of the offense of domestic violence. State v.Hannon, 4th Dist. No. 04CA20,
{¶ 19} "Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aide of each other, friendship, and conjugal relations. These factors are unique to each case and how much weight if any to give each of these factors must be decided on a case-by-case basis by the trier of fact." Id.
{¶ 20} In appellant's view, the Defense of Marriage Amendment proscribes any state action which creates or recognizes "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." Appellant maintains that the portion of R.C.
{¶ 21} Many appellate jurisdictions have considered this argument or one in pari materia and, not surprisingly, the legal determinations vary. We first point out that appellant's argument has garnered some support. The Second and Third Appellate Districts have held that R.C.
{¶ 22} Alternatively, the majority of appellate districts have determined that Issue 1 and R.C.
{¶ 23} In Rodriguez, the court observed:
{¶ 24} "a `status' is `the condition of a person or thing in the eyes of the law.' Merriam Webster Collegiate Dictionary (10th Ed. 1996). Black's Law Dictionary (8th Ed. Rev. 2004) defines `status' as `a person's legal condition, whether personal or proprietary; the sum total of a person's legal rights, duties, liabilities, and other legal relations, or any particular group of them separately considered * * *.'" Id. at ¶ 21.
{¶ 25} In light of these definitions, the Sixth District agreed with the Second and Third Appellate Districts' respective determinations that R.C.
{¶ 26} In light of this, the Sixth Appellate District has tersely remarked:
{¶ 27} "* * * [A] proper analysis should be performed in two parts: First, what rights and liabilities attach to the relationship by virtue of the statute; second, do those rightsand liabilities imposed upon the parties by statute approximate marriage?" Rodriguez, supra, at ¶ 26. (Emphasis sic.)
{¶ 28} With respect to the first prong, appellant's plea of no contest functioned to admit the elements of the crime of domestic violence. Hence, as a matter of procedure, it is undisputed that appellant was "living as a spouse," i.e., appellant and the victim were cohabitants. Where two unmarried persons are cohabitants under the domestic violence statute, they inherit specific rights and liabilities, viz., each cohabitant may file a complaint to prosecute the other person for an act of violence under R.C.
{¶ 29} We must next determine whether the legal status imposed, i.e., the right to prosecute acts of violence and the resulting augmented criminal liability, was intended to approximate the design qualities, significance or effect of marriage. We hold it does not. In order to make this determination, we must examine the intent motivating the enactment of the statute and the drafting of the amendment.
{¶ 30} The rights and liabilities established by R.C.
{¶ 31} R.C.
{¶ 32} "[through R.C.
{¶ 33} Alternatively, the Defense of Marriage Amendment "seeks to preclude the creation and recognition of any relationship `approximating the design, qualities, significance, or effect of marriage' between two persons, that would essentially infringe on the significance and effect of the institution of marriage itself." Nixon, supra, at 14, quoting Section
{¶ 34} For the foregoing reasons, appellant's sole assignment of error is overruled and the judgment of the Willoughby Municipal Court is affirmed.
O'Toole, J., concurs, Grendell, J., concurs in judgment only.