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When voters in 11 states approved constitutional amendments prohibiting same-sex marriage, critics charged that the ban would impair the ability of courts to adjudicate a wide array of cases, including domestic violence between unmarried couples. Now legal theory is running into reality. In a first test case in Ohio, a Cleveland judge recently heard arguments on whether the state’s amended constitution prohibits the Buckeye State from recognizing a legal relationship between unmarried people in its domestic violence laws. Ohio v. Forte, No. CR-04-460137-A (Cuyahoga Co, Ohio, Ct. C.P.). The Cuyahoga County Public Defender’s Office has raised the challenge in four domestic violence cases. “The issue presented is one of interpreting statutory language in the domestic violence statue, in light of a recently enacted constitutional amendment,” said John Martin, Cuyahoga County assistant public defender and appellate supervisor. Far-reaching amendment Ohio’s amendment is of particular interest to civil rights lawyers because it is one of the most far reaching. Known on the November ballot as Issue One, the amendment prohibits the state from “recognize[ing] a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.” Prosecutors say the public defender’s office has not met the high burden necessary to challenge the constitutionality of a state statute. The law obligates a judge to adopt a narrow reading of a statute in order to preserve its constitutionality, they argue. “The argument that there are unintended effects is self-defeating,” said Cuyahoga County assistant prosecuting attorney Matthew Meyer. “Courts are obligated to cut through that to get at the framer’s intent.” Meyer argues that domestic violence laws do not confer legal status on unmarried persons, but rather define prohibited conduct among a certain class of individuals. Whatever way Cuyahoga County Judge Stuart Friedman decides within the upcoming weeks, the issue is likely to be appealed, assert lawyers watching the case. Case Western Reserve University Professor Lewis Katz notes that if Friedman gives words their plain meaning, it would not be implausible for him to conclude that domestic violence statutes protect people who are domestic partners, in violation of the constitutional amendment. “I’m not prepared to say that it was an unintended consequence,” said Katz. “[The framers] don’t want unmarried people to have any of the same benefits in law that married people have,” he added. “The question is where do we go from here?” States outside Ohio are grappling with similar questions. Salt Lake City attorney Mary Corporon, of Corporon & Williams, recently filed a similar challenge to Utah’s domestic violence laws. Corporon challenged the constitutionality of a court protective order obtained by her client’s live-in girlfriend. Corporon was unavailable for comment. Gus Chin, a prosecutor in the domestic violence division of Salt Lake City’s Office of City Prosecutor, was not familiar with the case. Utah’s Domestic Violence Council referred questions to the Legal Aid Society director, who did not return phone calls. Domestic partner benefits for civil service workers in Michigan were placed on hold after an amendment passed there, with the state and unions expecting imminent litigation to resolve whether they may continue. Neither side has filed anything in court yet, said Harold Core, spokesman for the Michigan Civil Rights Commission. That issue is also in limbo in Ohio, although universities and municipalities have not revoked domestic-partner benefits, and there is still a registry for unmarried couples in Cleveland. “There’s a little bit of a dance going on where the proponents of the amendment have taken no steps to have it enforced,” said Alan Melamed, an attorney and the former chairman of Ohioans Protecting the Constitution, one of the main groups that opposed the amendment. Melamed said anti-amendment groups have had to walk a fine line to preserve their legal arguments. Before the amendment was approved, they argued that the new law could preclude their policies toward unmarried people. But with the amendment’s passage, they are in the ironic position of saying why it does not. Civil rights lawyers expect more litigation, according to Lara Schwartz, senior counsel with Human Rights Campaign, a national gay rights group in Washington. “There’s going to be a lot more litigation to determine what the Ohio amendment means,” she said.

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