Various State’s Marriage Amendments’ Have Unintended Consequences

Amending one’s constitution can be a dangerous exercise usually made even more so by the unfortunate fact that most legislatures can’t write good. (thems jokes people)

A while ago both Michigan and Ohio proposed amendments to each state’s constitutions via referendum. Both proposed amendments passed. Ohio’s passed by a wide margin. Basically, both amendments narrowly define a marriage as only between one man and one woman. This would have been simple enough but both state’s amendments went even further by preventing the state from acknowledging or conferring any rights or benefits upon any relationship that is similar to or seeks to approximate the designs and qualities of a marriage… And this is where the wheels came right off.

Ohio’s amendment says:

“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.”

Ohio’s amendment faced an interesting interpretive challenge when many (and I mean many) individuals who had been arrested for domestic violence for beating their non-married cohabitating partner, challenged their arrests/convictions based on the theory that, by convicting them the state would be implicitly acknowledging a relationship that approximated marriage. It was only after some seriously specious reasoning on the part of an Ohio appeals court that these various abusers were held accountable.

On May 7, 2008, The Volokh Conspiracy posted this story about a related problem in Michigan:

By state constitutional amenment in 2004, Michigan voters barred the state from recognizing same-sex marriages. But the awkwardly worded amendment went further: “To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”

The “similar union” language, along with the “for any purpose” language, was enough for the majority to conclude that it prohibited same-sex domestic partners benefits provided by some 20 state universities and municipal entities in the state. From the dissent: “It is an odd notion to find that a union that shares only one of the hundreds of benefits that a marriage provides is a union similar to marriage.”

The full text of the Michigan Supreme Court’s ruling is available here.

Ohio’s Marriage amendment is again placed squarely in another controversy involving adoption rights:

This story does a fair job of explaining the details behind a case being handled by my very good friend LeeAnn Massucci:

The Tenth Ohio District Court of Appeals was asked on March 27 to overturn a Franklin County ruling that the amendment has no effect on custody agreements.

Almost immediately after the amendment passed in 2004, Denise Marie Fairchild asked the Franklin County Common Pleas Court to invalidate a nearly four-year-old parenting agreement with her former partner, Therese Marie Fairchild, now Therese Marie Leach.

Denise is the biological mother of a son, now 12, born of artificial insemination from an anonymous donor. The couple lived together for four years before he was born in 1996. Their relationship ended in 2001, six months after the custody agreement was entered.


The court pointed out that the amendment can’t apply because the case is about the child.

“Denise equates the granting of custody to a non-parent as somehow promoting a same-sex marriage. The relationship between the child and the custodian is not the same as the relationship between two adults.”

The child’s best interest is a long-standing principle guiding all Ohio family law.

The trial court also held that “granting of custody does not ‘approximate the design, qualities, significance or effect of marriage.’ ”

Denise appealed this decision, and the case was heard March 27 by a three-judge panel: Charles R. Petree, Susan Brown, and Peggy Bryant. Danny Bank and Lorie McGaughan of Capital University law school were appointed by the court to represent the child.

I’ll be keeping an eye on this one.

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