166 Ohio App. 3d 188 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 1} This appeal concerns the issue of whether the provision in the domestic-violence statute, R.C.
{¶ 3} Ward moved to dismiss the charge against her, contending that the provision in the domestic-violence statute extending its protections to "a person living as a spouse," upon which the indictment is based, violates the recently-adopted Defense of Marriage Amendment. The trial court agreed with Ward and dismissed the indictment. The state appeals.
{¶ 4} Although no briefs of amicus curiae have been filed in this case, we are presently entertaining a number of appeals involving this precise issue in which four briefs of amicus curiae have been filed. We have considered those briefs, all of which have been helpful, in deciding this appeal. They are (1) the brief of the ACTION Coalition of Battered Women, the Ohio Domestic Violence Network, and the Ohio NOW Education and Legal Fund, filed June 6, 2005, in support of the state of Ohio in State v. Steinman, Greene App. No. 2005-CA-0046; (2) the brief of the Lambda Legal Defense and Education Fund, Inc., filed June 7, 2005, *190
in support of the state of Ohio in the same cause; (3) the brief of the Citizens for Community Values, filed August 23, 2005, in support of the defendant-appellant in State v.McIntosh, Montgomery App. No. 21093,
{¶ 5} Obviously, we have also considered the briefs of Ward and the state.
{¶ 7} This is an issue of first impression for this court. Impressive judicial authorities have already reached opposite conclusions on this issue. See, e.g., Statev. Newell,
{¶ 9} The Constitution of Ohio, including, of course, Section 11, Article XV, is the supreme law of this state, subordinate only to the Constitution of the United States and the laws of the United States enacted consistently with the federal constitution. The provisions of the Constitution of Ohio may not be required to defer to statutory law, whether directly or indirectly through the mechanism of deferential construction.
{¶ 10} The notion that two provisions of law should be construed, if reasonably possible, to avoid conflicting with one another is the principle of in *191 pari materia: two laws on the same subject matter must be construed with reference to each other. Black's Law Dictionary (8th Ed.Rev. 2004) 807. Had the citizens of Ohio, in adopting the provisions of the Defense of Marriage Amendment, wished those provisions to be in pari materia with the statutory law of Ohio, to be construed with reference to other statutory law, they could have enacted those provisions as ordinary law, using the provisions in Section lb, Article II for the enactment of ordinary law by means of an initiative petition. They did not do so; to the contrary, the measure was proposed by initiative petition as an amendment to the Constitution and was adopted as part of the Ohio Constitution. It is no more appropriate to construe the provisions of the Defense of Marriage Amendment deferentially to existing statutes than it would be to construe the provisions of Section 11, Article I, for freedom of speech and of the press in a manner deferential to statutory law.
{¶ 11} Our first task is to determine the meaning of Section 11, Article XV, the Defense of Marriage Amendment, and only then to determine whether the provision of the domestic-violence statute upon which the state relies violates the Ohio Constitution.
{¶ 12} The state cites State ex rel. LakeCty. Bd. of Commrs. v. Zupancic (1991),
{¶ 13} In State v. Rodgers,
{¶ 14} "The general assembly shall never authorize any county, town, or township, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation, or association whatsoever, or to raise money for, or loan its credit to, or in aid of, any such company, or corporation, or association."
{¶ 15} The Supreme Court held that the above-quoted provision prohibited the General Assembly from enacting laws authorizing bond issues in the future, but did not prevent laws previously enacted from having effect. In reaching this conclusion, it was aided by Section 1 of the schedule in the new Constitution, which provided that "all laws of this state in force on the first day of September, 1851, not inconsistent with this constitution, shall continue in force until amended or repealed." The court then articulated the principle, quoted above, that both the Constitution and a statute must be construed, if possible, so as to avoid a conflict, but went on to observe:
{¶ 16} "But in this case there is no inconsistency in the language of the acts of assembly and the provision of the constitution under consideration. The provision of the constitution is prospective in its terms." Id. at 400.
{¶ 17} In short, the court in State ex rel.Smead v. Union Twp. did exactly what we propose to do herein: it first construed the Constitution, and then determined whether the statutory enactment before it offended the Constitution. It did observe that ambiguous language in both the Constitution and a statute should be construed, if possible, to avoid a conflict, but this observation was gratuitous — the court found no ambiguity in the constitutional provision it was considering.
{¶ 18} The Defense of Marriage Amendment is no less a part of the fundamental, organic law of Ohio by reason of its recent vintage; if anything, it is entitled to even greater deference. By definition, an amendment to the Ohio Constitution, once adopted, supersedes any preexisting provisions of the Constitution. In stating this obvious fact, we make no observations concerning the wisdom of the electorate in having adopted the amendment. Our sworn obligation to uphold the Constitution of Ohio is not limited or qualified in any way based upon our assessment of its merits.
{¶ 20} "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."
{¶ 21} As a preliminary matter, it should be noted that Section 11, Article XV, is not addressed to prospective legislative enactments by the General Assembly. This distinguishes it from the provision in the Constitution of 1851 under consideration in State ex rel. Smead v. Union Twp.
{¶ 22} The first sentence of Section 11, Article XV, is straightforward enough. Marriage in Ohio is to be restricted to a relationship between one man and one woman. Same-sex marriages are not permitted; neither is polygamy or polyandry. Nor will a same-sex marriage undertaken in another state, where same-sex marriages might be legal, be recognized in Ohio.
{¶ 23} The second sentence of the amendment is much broader. It appears to be an attempt to prevent the legal recognition of quasi-marital relationships for the purpose of approximating the design, qualities, significance, or effect of marriage. In our view, the words "design," "qualities," "significance," and "effect" are broad concepts, and the fact that they are listed in the disjunctive is significant.
{¶ 24} The deep issue in this appeal is whether a statute giving one effect of a de jure marriage — the protection afforded a spouse from domestic violence by the other spouse — to a de facto marital relationship runs afoul of the amendment, or whether it, or other statutes or laws, would be required to give all of the effects of marriage to a quasi-marital relationship before running afoul of the amendment. In our view, the only reasonable interpretation of the second sentence of the amendment is the former.
{¶ 25} Let us suppose that the amendment were given the more restrictive interpretation. To begin with, it is difficult to imagine any act by the state of Ohio, or any of its political subdivisions, that would, in fact, give all of the effects of marriage to a quasi-marital relationship. Secondly, the evident purpose behind the second sentence of the amendment — to prohibit the indirect recognition *194 of nontraditional marriages — could die the death by a thousand cuts. Imagine the adoption of a testimonial privilege for quasi-spouses, the addition of quasi-spouses alongside spouses and children as beneficiaries in wrongful-death actions, the addition of quasi-spouses to the class of family members who can recover for loss of consortium, or the addition of a quasi-spouse to the list of persons who must be notified of a woman's intention to have an abortion. The list is endless. At what point would the second sentence of the amendment be deemed to have been violated? Would only the last in the series of legislative enactments, common-law rulings, and administrative or judicial rule-making be voided for unconstitutionality?
{¶ 26} Suppose that, after a long series of legal struggles to enhance the rights of nontraditional quasi-spouses, the only remaining point of difference in Ohio between a spouse and a quasi-spouse were that the spouse, but not the quasi-spouse, could claim an additional $25 credit on the Ohio income tax? Would that avoid implicating the second sentence of the amendment because actual spouses and quasi-spouses are not treated identically for all legal purposes in Ohio? Suppose the city of Xenia gave an actual spouse, but not a quasi-spouse, a $25 credit on its municipal-income tax, but no other taxing authority in Ohio made this distinction, and there were no other differences in Ohio between the legal effect of an actual marital relationship and a quasi-marital relationship?
{¶ 27} In our view, the jurisprudence contemplated by the hypothetical recited above would be unworkable. The general principle evident in the second sentence to the Defense of Marriage amendment is that a legal status of a de facto marital relationship shall neither be created nor recognized in Ohio as having the same effect as the legal status of a de jure marital relationship. It is tempting to speculate which potential exceptions to this general principle would have found favor with a majority of the Ohioans who voted for the Defense of Marriage Amendment, but this would be mere speculation. In our view, the second sentence was intended to avoid the prospect of the Ohio General Assembly, or the Ohio courts, establishing exceptions to its reach. In this connection, it is useful to remember that the Defense of Marriage Amendment was proposed and adopted amidst concerns that the concept of traditional marriage was being eroded by judicial rulings, among other factors.
{¶ 29} "`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."
{¶ 30} "Cohabitation," for purposes of the statute, has been defined as follows:
{¶ 31} "(1) sharing of familial or financial responsibilities and (2) consortium. * * * 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, aid of each other, friendship, and conjugal relations." State v.Williams (1997),
{¶ 32} This definition could serve just as readily as a definition of the marital relationship. Both cohabitation, as defined above, and the marital relationship encompass a myriad of possible individual attributes — no two relationships of either type are exactly alike — but they all involve some combination of the attributes listed in the above-quoted passage.
{¶ 33} In our view, a "person living as a spouse," for purposes of the domestic-violence statute, is the sort of quasi-marital relationship that the Defense of Marriage Amendment was concerned with.
{¶ 34} The state objects that the domestic-violence statute does not merely extend its protection to quasi-spouses, but also to children and former spouses. We view this as a non sequitur. The alleged victim in this case is within the protection of the statute solely by reason of his status as a "person living as a spouse." The fact that there are other relationships within the scope of the protection afforded by the statute is immaterial. If the alleged victim also had one of those other relationships with the offender, there would be no problem — the alleged offense could be prosecuted on the basis of that other relationship, the relationship of former spouse, for example.
{¶ 35} This suggests one way in which the statute might be amended to avoid running afoul of the Defense of Marriage amendment. If the protections afforded by the statute were extended to all persons sharing residential quarters, that would present no constitutional problem, because an alleged victim who happens to be a quasi-spouse would be accorded the protection of the domestic-violence statute, not by reason of being a quasi-spouse, but by reason of sharing the residence. Similarly, a quasi-spouse can enjoy the protections of the assault statutes, not by reason of being a quasi-spouse of the offender, but merely because he or she is a human being, entitled as a human being to protection by *196 the criminal assault statutes from assaults by any other human being. Extending the protections afforded by the domestic-violence statute to all persons sharing residential quarters would obviously constitute an expansion of the statute, and whether that would be desirable is for the General Assembly to determine, not this court, but it is a possible solution that the General Assembly may wish to consider for the constitutional problem.
{¶ 36} We conclude that the "person living as a spouse" provision of the domestic-violence statute, R.C.
Judgment affirmed.
BROGAN, J., concurs.
Dissenting Opinion
{¶ 37} I disagree. The sole assignment of error raised by this appeal is whether the trial court erred as a matter of law when it declared R.C.
{¶ 38} The majority correctly notes that our first task is to determine the meaning of the DOMA, and second (indeed, only then) whether the provisions of the domestic-violence statute upon which the state relies violates the Ohio Constitution; hence, accurate interpretation is vital. The majority's approach, however, is the rhetorical equivalent of a building inspector knocking a house off its foundation and "only then" declaring the structure unsound.
{¶ 39} I agree with the majority that the first sentence of DOMA is "straightforward." However, I disagree with the majority's analysis that the second sentence of the DOMA attempts to prevent the legal recognition of "quasi-marital relationships." Indeed, the fact that the majority writes that the second sentence "appears to attempt to prevent the legal recognition of quasi-marital relationships" admits to the role of speculation and conjecture in its approach. What is a "quasi-marital relationship" or a "quasi-spouse?" These are not defined legal terms in the state of Ohio and probably would be as incapable of definition as quasi-marriage proposals, quasi-pregnancies and quasi-divorces. The reasonable interpretation of the second sentence, which takes into account the history of the DOMA, mandates it be read in conjunction with the first sentence to prevent the enactment of any laws that recognize/create unions between same-sex individuals that are the formal/legal equivalent of a traditional marriage. This interpretation of the second sentence of the DOMA recognizes that "[w]here provisions of the Constitution address the same subject matter, they must be read in pari materia *197
and harmonized if possible." State ex rel. Toledo v. Lucas Cty.Bd. of Elections (2002),
{¶ 40} "In the interpretation of an amendment to the Constitution the object of the people in adopting it should be given effect; the polestar in the construction of the constitutional, as well as legislative, provision is the intention of the makers and adopters thereof." Castleberryv. Evatt (1946),
{¶ 41} Proceeding with the proposition that the DOMA limits legal marriage to one man, one woman, I turn to whether the term "living as a spouse" under R.C.
{¶ 42} It is without question that the domestic-violence statute enacted over two decades ago was designed to protect "family or household members" from violence within the home, violence that arises out of the nature of the relationship between the victim and the perpetrator. Whether the victim is "living as a spouse" with the offender is left to the parties to define privately and the jury to discern factually. "Legal status" is achieved only by some legal action; "living as a spouse" requires no legal action.
{¶ 43} A person "living as a spouse" is a family or household member, an element under R.C.
{¶ 44} The phrase "living as a spouse" does not confer a "legal status," but rather describes a setting and a series of circumstances particular to a relationship wherein criminal harm has been alleged. The phrase assists the fact-finder, who must determine whether the unique circumstances surrounding a victim/offender relationship meet the element of "family or household member." Since the description "living as a spouse" encompasses a larger segment of couples other than just individuals "living as spouses" and also includes "cohabitors," are we suggesting that the "legal status" the state purportedly recognizes includes "cohabitors"? See State v.Hammond,
{¶ 45} I would hold that the domestic violence law is constitutional and may coexist in harmony with Section
{¶ 46} I would reverse the trial court's judgment and reinstate the indictment. *199