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Law Barring Domestic Violence Against Unmarried Person ‘Living As a Spouse’ Held Constitutional

2006-0151. State v. Carswell, 2007-Ohio-3723.
Warren App. No. CA2005-04-047, 2005-Ohio-6547. Judgment affirmed.
Moyer, C.J., French, Lundberg Stratton and O'Connor, JJ., concur.
Pfeifer, J., concurs in syllabus and judgment only.
O'Donnell, J., concurs separately.
Lanzinger, J., dissents.
Judith L. French, J., of the Tenth Appellate District, was assigned to sit for Resnick, J., whose term ended on January 1, 2007.
Cupp, J., whose term began on January 2, 2007, did not participate in the consideration or decision of this case.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2007/2007-Ohio-3723.pdf

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(July 25, 2007) The Supreme Court of Ohio held today that an Ohio law barring domestic violence against an unmarried person who is living with the offender “as a spouse” merely identifies one class of persons who are protected by the statute and does not create or recognize “a legal relationship that approximates marriage” in violation of the 2004 “Marriage Amendment” to the Ohio Constitution. The 6-1 decision was authored by Chief Justice Thomas J. Moyer.

Article XV, Section 11 of the Ohio Constitution, often referred to as the “Marriage Amendment,” was adopted by a statewide voter initiative in November 2004. The amendment states that: “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.”

In this case Michael Carswell was indicted on one count of domestic violence in violation of R.C. 2919.25(A), which provides: “No person shall knowingly cause or attempt to cause physical harm to a family or household member.” The alleged victim was a female to whom Carswell was not married. The state intended to present evidence that Carswell's alleged victim had been “living as a spouse” with Carswell and that she was therefore a “family or household member” under R.C. 2919.25(F).

The trial court granted Carswell's motion to dismiss the indictment, concluding that the domestic-violence statute violated the “Marriage Amendment” to the Ohio Constitution because the statute recognized a legal status similar to marriage for unmarried persons. On review, the 12th District Court of Appeals reversed and reinstated the indictment. The court of appeals held that while the statute does recognize a special class of unmarried persons living together “as a spouse,” this classification did not create a legal status akin to marriage.

Carswell appealed the 12th District's ruling to the Supreme Court, and the Court agreed to hear arguments in the case.

Writing for the Court in today's decision, Chief Justice Moyer noted that the statute at issue in this case distinguishes the specific offense of domestic violence from the general offense of assault. “The conduct of the accused is the same in both instances. Both crimes prohibit the act of ‘knowingly causing or attempting to cause physical harm,' but the accused's relationship with the victim is the determining element,” the Chief Justice wrote. “Physical harm caused to another is an assault (under) R.C. 2903.13; physical harm caused to a family or household member is domestic violence (under) R.C. 2919.25.”

In defining those persons it sought to give special protection under the domestic violence statute, the Chief Justice pointed out that the General Assembly did not limit such protection only to legal spouses and persons “living as spouses,” but included numerous other classifications of specific victims including “a former spouse, a parent, a child, a blood relative, an in-law, the parent of a spouse or former spouse, a blood relative or in-law of a spouse or former spouse and the natural parent of a child that is also the issue of the offender. ”

Noting that Carswell argued that inclusion of a “person living as a spouse” as a protected party violated the constitution, Chief Justice Moyer wrote that the domestic violence statute defines that term as “a person who is cohabiting with the offender or who ... has cohabited with the offender within five years of the alleged crime. ... 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. The state does not have a role in creating cohabitation, but it does have a role in creating a marriage.”

“While the intent of the domestic-violence statute is to protect persons from violence by close family members or residents of the same household, the intent of the marriage amendment was to prevent the creation or recognition of a legal status that approximates marriage through judicial, legislative or executive action. The statute and the constitution are not in conflict,” Moyer concluded. “We hold, therefore, that the term ‘person living as a spouse' as defined in R.C. 2919.25 merely identifies a particular class of persons for the purposes of the domestic-violence statutes. It does not create or recognize a legal relationship that approximates the designs, qualities or significance of marriage as prohibited by Section 11, Article XV of the Ohio Constitution.”

Chief Justice Moyer's opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O'Connor and Terrence O'Donnell and Judge Judith L. French of the 10th District Court of Appeals, who sat by assignment in place of former Justice Alice Robie Resnick. Justice Paul E. Pfeifer concurred in syllabus and judgment only.

Justice Judith Ann Lanzinger entered a dissent in which she “reluctantly and regretfully” concluded that the majority decision “misinterprets the (marriage) amendment, thus saving the statute from being declared unconstitutional.” She wrote: “Using the term ‘living as a spouse' within the definition of ‘family or household member' clearly expresses an intent to give an unmarried relationship a legal status that approximates the ‘effect of marriage.' The constitutional problem in this case does not arise because cohabitating unmarried persons are included as one of the several groups to whom the domestic violence statutes apply. Instead, the problem is definitional: by using the term ‘living as a spouse' to identify persons whom the statutes protect and against whom prosecution may be instituted, the General Assembly inherently equates cohabitating unmarried persons with those who are married and extends the domestic violence statutes to persons because their relationship approximates the significance or effect of marriage.”

Justice Lanzinger concluded that: “Insofar as R.C. 2919.25 recognizes as a ‘family or household member' a person not married to the offender but ‘living as a spouse' with the offender, it is, in my view, unconstitutional beyond a reasonable doubt.”

Joshua S. Engel, 513.695.1325, for the State of Ohio and Warren County prosecutor's office.

Thomas G. Eagle, 937.743.2545, for Michael Carswell.