Gay-hating social conservatives defecate all over everything, Ohio Supreme Court cleans up the mess.

In 2004, Ohio voters approved an amendment to the state constitution limiting marriage to unions of one man and one woman. By itself, that’s fairly unremarkable. Pretty much every state so provides by statute, constitutional provision or both. But Ohio’s provision went substantially beyond that.

Exhibiting all the sophistication and richly nuanced subtlety of a bukkake film, the amendment’s drafters came up with this:

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. (Emphasis added.)

By the way, the presence of this constitutional amendment on the November 2004 ballot brought mouth-breathing Ohio religious nuts to the polls in droves, and was thus a major contributing factor to Bush’s “reelection.”

The obvious intent of the amendment’s second sentence was to prohibit Ohio from establishing “civil unions” for gay couples and from recognizing civil unions lawfully created in other states. Not surprisingly, though, the strikingly overbroad verbiage had an unintended consequence or two.

Section 2919.25 of the Ohio Revised Code criminalizes domestic violence. The statute prohibits harming “a family or household member.” The term “household member” includes a common law spouse or “a person . . . who otherwise is cohabiting with the offender . . . .”

Back in February 2005 some clown named Michael Carswell was indicted for domestic violence after choking his live-in girlfriend. Live-in girlfriends are clearly protected by the domestic violence statute, so no problem, right?

Not so fast, buddeh. Carswell moved to dismiss the indictment, arguing that the gay marriage amendment rendered the domestic violence statute unenforceable on the facts of his case. Why? The amendment prohibits the state from “recogniz[ing] a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.” That, Carswell’s lawyer argued, is exactly how the domestic violence law operated in this case: it recognized “a legal status” for a relationship of unmarried persons that intends to approximate marriage.

The trial judge bought the argument and dismissed the indictment. The court of appeals reversed, and the case made its way to the Ohio Supreme Court.

In a 6-1 decision, the Supreme Court ruled that the constitutional amendment did not render the domestic violence statute unconstitutional as applied to this case. State v. Carswell (PDF, 17 pages).

The decision is completely unsurprising. The idea that a provision designed solely to render gays second-class citizens would have such potentially limitless ramifications is downright repulsive, even more repulsive than the amendment’s actual intent. It’s difficult to imagine the Court deciding the case any other way.

But let’s not delude ourselves into believing that the Supreme Court’s decision proves that the trial judge got the law wrong. As ably pointed out by the dissenting Supreme Court Justice — who I appeared before many a time back in the day when she was an Ohio Common Pleas Court judge and I was an Ohio lawyer — the analytical contortions the Supreme Court majority had to perform to get the result it wanted were staggering.

Once again, in their zeal to give their religion-based agenda of hate the force and effect of law, social conservatives fucked everything up. And once again, the courts are there to clean up the mess and pull society’s ass from the fire.

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  • illusory tenant  On August 7, 2007 at 1:20 pm

    Very interesting indeed. A few more “strict constructionists” on that Ohio court and Carswell would have gotten away with it.

    The potential effect on domestic violence statutes was called a “red herring” by one of the “family values” outfits in Virginia, which ratified identical language to that of Ohio.

    Wisconsin’s reads, “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

    Not sure if any accused girlfriend-beater’s tried to invoke it though.

  • Clutch  On August 8, 2007 at 7:32 am

    It’s beautiful that “judicial activism” saves social regressives from themselves…


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