Court upholds domestic violence charge

An unmarried partner can be prosecuted under Ohio’s domestic violence laws even though the state bans gay marriages, the Ohio Supreme Court ruled Wednesday.

In a 6-1 decision, justices rejected an argument that the domestic violence law was unenforceable in cases involving unmarried couples because the law refers to them as living together “as a spouse.”

Chief Justice Thomas Moyer wrote in the opinion that lawmakers included many groups under the domestic violence law, and that describing people’s living arrangements isn’t the same as creating a law approximating marriage.

The gay marriage ban prohibited the government from creating any such approximation.

“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,” Moyer wrote. “The state does not have a role in creating cohabitation, but it does have a role in creating a marriage.”

The decision came in a case in which a man accused of assaulting his live-in girlfriend argued that he could not be charged with domestic violence because the ban on gay marriage, adopted as a constitutional amendment in 2004, prohibits the state from assigning legal status to unmarried couples.

The case was being closely watched around the country.

Twenty-seven states have constitutional language defining marriage as between a man and a woman, according to the National Conference of State Legislatures. Ohio’s amendment is among the broadest because it bans civil unions and denies legal status to all unmarried couples and gay marriages.

“I’m very glad the Defense of Marriage amendment isn’t going to be used to tear apart the domestic violence statute because, to be honest, I voted for the amendment,” Warren County prosecutor Rachel Hutzel said Wednesday. “I think the two can be reconciled.”

Justice Judith Ann Lanzinger cast the lone dissenting vote. She argued that the majority misinterpreted the amendment, “thus saving the statute from being declared unconstitutional.”

“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,’ ” she wrote.

A Warren County Common Pleas judge had dismissed a felony domestic violence charge against Michael Carswell. The charge was reinstated by an appeals court. Wednesday’s ruling upholds that decision.

Citizens for Community Values, the Cincinnati-based group that pushed for Ohio’s 2004 marriage amendment, sided with Carswell. The group argued that the domestic violence law had indeed given unmarried couples the type of legal status that the amendment sought to prohibit.

The American Civil Liberties Union-Ohio applauded the ruling. “This amendment was passed for a very specific reason and should not be interpreted in such a way that would deny people fundamental rights they already enjoy,” legal director Jeffrey Gamso said in a statement.