Ohio's gay wedding ban tested
By M.R. Kropko
CLEVELAND -- Darnell Forte is accused of slapping a woman he lived with.
To try to get a domestic violence charged overturned, his lawyer has raised a wider issue, claiming a conflict between Ohio's new constitutional amendment defining marriage and the state's domestic violence law.
Opponents of the amendment banning gay marriage, among the nation's broadest, feared the measure would be used to try to curtail all sorts of rights for unmarried people, and they say the domestic violence case in Cleveland is one such attempt.
"What's at stake goes beyond the issue of gay marriage, it's whether or not a state constitutional amendment can strip Ohio people of basic protections," said Heather Sawyer, senior counsel in Chicago for Lambda Legal, a national gay rights organization.
The case is being watched nationally because of the precedent that could be set if the domestic violence charges are thrown out. Forte's lawyer argues his client cannot be charged with the felony because domestic violence charges should be reserved for married couples under the state's law defining marriage, which won 62 percent of the vote in November.
A ruling expected Feb. 18 in the Forte case would be the first for the issue that is the subject of at least 11 similar motions in the Cleveland area.
The American Civil Liberties Union of Ohio and the Ohio Domestic Violence Network, a statewide coalition of service providers for domestic violence victims, say the domestic violence law helps victims get quick protective orders that may not be possible if a person is charged with assault.
The domestic violence law "is not creating a marriage. It is creating safety and justice for victims of domestic violence," said Nancy Neylon, executive director of the Domestic Violence Network.
The ACLU filed a brief against Forte's charges being overturned.
Forte's lawyer, assistant public defender David Magee, claims in the motion filed in Cuyahoga County Common Pleas Court that applying the domestic violence law to unmarried people conflicts with the marriage amendment's wording.
The amendment prohibits any state or local law that would "create or recognize a legal status for relationships of unmarried individuals." Ohio's 25-year-old domestic violence law is not limited to married people.
At least one similar legal issue arose in Utah, which has a new marriage amendment similar to Ohio's.
The Third Judicial District Court in Salt Lake City in January denied a motion attempting to drop domestic violence charges in a case involving an unmarried couple based Utah's marriage definition.
John Martin, appeals supervisor in the Cuyahoga public defender's office, said the motions seeking to overturn the domestic violence charges are a specific defense strategy, not an attempt to diminish Ohio's constitutional amendment.
But Licking County Domestic Relations Judge Russell Steiner said the potential conflict between the amendment and the statute has already caught the attention of judges across the state.
"I think it will make its way up to a (state) court of appeals, but whether or not it gets to the (Ohio) Supreme Court is hard to say. It has to start at the trial court level, so what is happening in Cuyahoga County appears to be a first step in that regard," Steiner said.
Christi Goodman, an attorney at the Denver-based National Conference of State Legislatures, said she is skeptical other states would take note of the case unless it reaches the Ohio Supreme Court.
However, the Cuyahoga case has potential to alert defense lawyers outside of Ohio to look for a similar strategy, said Alexandria Ruden, a family law expert with the Cleveland Legal Aid Society. Ruden helped write Ohio's domestic violence statute.
The motion "seems to me to be a terrible stretch of the law," she said. "The claim is that you cannot as an unmarried individual have a protection order, because that is what married people are allowed to have."
Phil Burress, president of Cincinnati-based Citizens for Community Values, a public policy organization that was a major proponent of Ohio's gay marriage ban, said the amendment only defines marriage and was never intended to change the state's domestic violence law.
If courts agree to drop domestic violence charges, Burress said his organization would lobby Ohio lawmakers to change the domestic violence statute.
"We would fix the law and make sure the penalty for domestic violence is the same against everyone. It's a crime. Physical abuse is illegal, period. I don't see how you can beat up someone living with you and get away with it," Burress said.
Gay rights groups campaigned against the marriage amendment, saying it could unintentionally harm unmarried people's rights or benefits in other areas such as inheritances, hospital visitation and property ownership.
The groups have said they hope the domestic violence case may lead to the entire amendment being challenged in court.
• Seventeen states have constitutional language defining marriage as between a man and a woman.
• Ohio's bans civil unions and legal status to all unmarried couples in addition to gay marriages.