State v. Ward , 2006 Ohio 1407 ( 2006 )

{¶ 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. 2919.25 unconstitutional as it relates to cohabiting partners, pursuant to the Defense of Marriage Amendment ("DOMA").

{¶ 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 and harmonized if possible." State ex rel. Toledo v. Lucas Cty.Bd. of Elections (2002), 95 Ohio St.3d 73, 78,765 N.E.2d 854. The second sentence should be read to buttress the narrow legal definition of marriage set out in the first sentence of the DOMA. The object and operative term of the second sentence of the DOMA is the general term "legal status." The textual canon of interpretation ejusdem generis calls for interpreting a general term in harmony with the class of objects reflected in more specific terms accompanying it. See, generally, Statev. Kuns (1967), 10 Ohio St.2d 1, 39 O.O.2d 1,225 N.E.2d 226. Specific terms appear in the first sentence of the amendment defining marriage as "a union between one man and one woman." The term "legal status," therefore, relates to a union between one man and one woman, and the second sentence merely prohibits recognizing a marriage of two or more persons other than one man and one woman. A broader reading would render one man/one woman entirely superfluous.

{¶ 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), 147 Ohio St. 30, 33 O.O. 197,67 N.E.2d 861, paragraph one of the syllabus. During the 2004 presidential election year, 11 states, including Ohio, placed an amendment called the Defense of Marriage Amendment on the ballot. Commonly known as Issue I, its purpose was, as the majority notes, "straightforward enough." Its clear purpose was to prevent persons of the same sex from entering a lawful marriage. It is the duty of the court, and its only proper purpose in the construction of constitutional provisions, to ascertain and give effect to the intent of the people. Hupp v. Hock-Hocking Oil Natural Gas Co., 88 Ohio St. 61, 101 N.E. 1053, syllabus. The sovereign voice of the people is clear in Section11, Article XV, of the Ohio Constitution.

{¶ 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. 2919.25 creates a "legal status" that the DOMA forbids.

{¶ 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. 2919.25. The domestic-violence law classifies and/or categorizes victims who are within its purview. A thorough review of case law prior to the amendment's enactment failed to reveal a single case that referred to the category of victims "living as a spouse" as a legal status. "Legal status" is not defined anywhere in the criminal code, nor would anyone expect it to be. Criminal sections proscribe conduct and classify victims, but such classifications or categories are not akin to the "legal status" afforded an "invitee," for example in a premises-liability case. Such a "legal status" as "invitee" within the context of civil law defines not only rights but concomitant duties and/or obligations. The "legal status" of a person is ultimately a question of law and not a question of fact. Yet clearly the fact-finder must determine in a domestic-violence case whether an individual is living or functioning as a spouse in order to fall within the category of a family or household member. It is necessarily a question of fact. Williams pronounced that the determination of cohabitation requires a case-by-case analysis by the trier of fact.

{¶ 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, 1996 WL 748272 (Ohio App. 2 Dist.), and Statev. Yaden (1997), 118 Ohio App.3d 410, 692 N.E.2d 1097. It is illogical to conclude that a person "living as a spouse" and/or cohabitating somehow is elevated to the position of a state-sanctioned marriage. Certainly, such a relationship is not in contravention of a ban on same-sex marriage or polygamy or polyandry.

{¶ 45} I would hold that the domestic violence law is constitutional and may coexist in harmony with Section11, Article XV, of the Ohio Constitution. In fact, there is agreement among the Fifth, Seventh, Ninth and 12th appellate districts that Section 11, Article XV, of the Ohio Constitution does not render R.C. 2919.25 unconstitutional. See, e.g.,State v. Newell, Stark App. No. 2004CA00264,2005-Ohio-2848, 2005 WL 1364937, ¶ 43; State v.Rexroad, Columbiana App. Nos. 05 CO 36, 05 CO 52,2005-Ohio-6790, 2005 WL 3489726, ¶ 35; State v.Nixon, 165 Ohio App.3d 178, 2006-Ohio-72, 845 N.E.2d 544;State v. Carswell, Warren App. No. CA2005-04-047,2005-Ohio-6547, 2005 WL 3358882, ¶ 20-21.

{¶ 46} I would reverse the trial court's judgment and reinstate the indictment.