State v. Carswell: SCOhio Doesn’t Recognize a Conflict When It Sees One

As noted last night, the Ohio Supreme Court handed down its long-anticipated decision in State v. Carswell. The defendant claimed gay marriage ban passed as a constitutional amendment in 2004 nullifies that part of the statute defining the crime of domestic violence that applies the statute to unmarried couples living together. On a 6-1 vote, the Court found against the defendant.

As Republican as the Ohio Supreme Court is, the ultimate result in the case posed a challenge to the Court. On the one hand, the conservative result would be to find the domestic violence statute constitutional. Conservative judges generally hesitate to overturn statutes as unconstitutional, especially when the rights claimed are not property or Lockner-era due process.

On the other hand, conservative jurisprudential methodology is supposed to include strictly interpreting the plain language of statutes and constitutional provisions. The plain language of the two provisions certainly appears to require finding that the statute conflicts with the new constitutional amendment. To reconcile the tension, the Court basically fudges.

First, the relevant provisions. Chapter 2919.25 of the Ohio Revised Code defines "domestic violence" basically as causing injury to a family or household member. The code further defines terms as follows:

(F) As used in this section and sections 2919.251 and 2919.26 of the Revised Code:
(1) “Family or household member” means any of the following:
(a) Any of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the offender;

So the statute is defined in terms of familial relations and the familial relationship for unmarried couples living together is included because of its similarity to marriage.

Meanwhile, the gay marriage ban at issue reads as follows in relevant part:

“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.”

So this certainly looks like a slam dunk. The state isn't allowed to either create a marriage-like status for and unmarried couple, nor may it recognize such a status, regardless of what the couple does short of getting married. The way the court finesses this is by holding at length that the domestic violence statute doesn't create a marriage status, and all but ignoring the fact that the statute recognizes the status. Here's the conclusion of the court's argument:

The state does not create cohabitation; rather it is a person’s determination to share some measure 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. See R.C. 3101.01 et seq. The state played no role in creating Carswell’s relationship with the alleged victim. Carswell created that relationship.

True enough, but it's hard to argue that the statute doesn't recognize a legal status for unmarried couples living together, a status which includes features of marriage. Throughout teh opinion the court never comes to grips with the second prohibition in the ban -- recognizing a marriage-like legal status.

Things get downright surreal in the syllabus:

The term “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.

So according to the Court, the statute identifies Carswell as being in a relationship that is tantamount to a familial relationship without recognizing that relationship. As Justice Lanzinger puts it as she introduces her dissent:

Because of an understandable need to uphold the domestic violence statute as it is currently written and to avoid the unintended consequences that result from the passage of Section 11, Article XV of the Ohio Constitution, the majority misinterprets the amendment, thus saving the statute from being declared unconstitutional.

And that's pretty much at the heart of all of this. As the Court's tortured logic writhes on the page, it looks for all the world that the Court was more interested in saving the stature of the gay marriage ban than forthrightly interpreting the two clashing provisions.

When a court punts on the hard questions like this, it generally spells trouble for cases further down the line. Among those coming are Rep. Tom Brinkman's suit against Miami University for offering benefits to same-sex partners. While the Court's decision may not be a political win for gay rights supporters, the Court has put itself in quite a corner for cases like that one. After all, Miami University has merely identified people who are eligible for benefits. It hasn't created or recognized any legal status. Right?