H.B. 272: Ohio Defense of Marriage Act

State law

By: Bill Seitz

Date: November 2001

Source: Ohio House. 2001. Ohio Defense of Marriage Act. 124th General Assembly, regular session. H.B. 272.

About the Author: Ohio state representative Bill Seitz of Green Township is the Assistant Majority Whip for the Ohio House of Representatives. He authored and sponsored Ohio's Defense of Marriage Act.

INTRODUCTION

In the mid-1990s, Defense of Marriage Acts began to appear on the state legislative dockets of various states in the United States. These acts, referred to as DOMAs, came about as a reaction to judicial decisions that granted same-sex couples some of the benefits and rights of heterosexual married couples. Although the issue of granting marriage licenses to same-sex couples reaches back to the 1970s, where such licenses were granted in rare exceptions in Minnesota, Colorado, and Arizona (and subsequently struck down by the courts), DOMA legislation did not gain political momentum until the mid-1990s.

A Hawaiian Supreme Court decision in 1993, Baehr v. Miike, stated that the prohibition against same-sex marriage violated the state's Equal Protection clause in the Hawaiian state constitution; the state needed to prove a compelling reason for preventing same-sex marriage. This decision alarmed same-sex marriage opponents, who feared that a "domino effect" could take place; if one state approved same-sex marriage, would the Full Faith Clause of the United States Constitution force other states to recognize same-sex marriage via the traditional reciprocity and recognition that each state gave to another?

A federal Defense of Marriage Act, sponsored by Republican Congressmen such as Bob Barr of Georgia and Jim Sensenbrenner of Wisconsin, proposed to defend traditional, heterosexual marriage against any change in definition that would permit same-sex marriage. The act, first submitted on May 7, 1996, included two primary proposals: 1) no state would be forced to recognize a marriage of two people of the same sex, even if the same-sex couple were granted a marriage license in another state, and 2) marriage would be defined as involving one man and one woman only, to the exclusion of all other parties.

The federal DOMA passed both the Senate and the House of Representatives and was signed into law by President William J. Clinton on September 21, 1996. Same-sex marriage opponents believed that overall the federal DOMA would quell debate concerning same-sex marriage and safeguard state interests. It was understood that individual states might permit same-sex marriage at any point, but the purpose of the federal DOMA was to protect states from being forced to honor marriage licenses from out-of-state same-sex marriages.

Critics of the federal DOMA law state that the law goes too far concerning the Full Faith and Credit clause of the constitution and violates the Equal Protection clause of the constitution. These critics have pursued a U.S. Supreme Court review of the legislation since the bill was passed into law. The U.S. Supreme Court, however, has declined to hear these cases. As same-sex marriage supporters began to use the judicial system to file lawsuits against these laws and gained success in states such as Vermont, same-sex marriage opponents began to push for state legislatures to pass state DOMA laws.

PRIMARY SOURCE

A BILL

To amend section 3101.01 of the Revised Code to specifically declare that same-sex marriages are against the strong public policy of the state, to declare that the recognition or extension of the specific statutory benefits of legal marriage to nonmarital relationships is against the public policy of the state, and to make other declarations regarding same-sex marriages.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 3101.01 of the Revised Code be amended to read as follows:

Sec. 3101.01. (A) Male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer of kin than second cousins, and not having a husband or wife living, may be joined in marriage. A marriage may only be entered into by one man and one woman. A minor shall first obtain the consent of the minor's parents, surviving parent, parent who is designated the residential parent and legal custodian of the child minor by a court of competent jurisdiction, guardian, or any one of the following who has been awarded permanent custody of the minor by a court exercising juvenile jurisdiction:

(1) An adult person;

(2) The department of job and family services or any child welfare organization certified by such the department;

(3) A public children services agency.

(B) For the purposes of division (A) of this section, a minor shall not be required to obtain the consent of a parent who resides in a foreign country, has neglected or abandoned such the minor for a period of one year or longer immediately preceding the minor's application for a marriage license, has been adjudged incompetent, is an inmate of a state mental or correctional institution, has been permanently deprived of parental rights and responsibilities for the care of the child minor and the right to have the child minor live with the parent and to be the legal custodian of the child minor by a court exercising juvenile jurisdiction, or has been deprived of parental rights and responsibilities for the care of the child minor and the right to have the child minor live with the parent and to be the legal custodian of the child minor by the appointment of a guardian of the person of the minor by the probate court or by any other another court of competent jurisdiction.

(C)(1) Any marriage between persons of the same sex is against the strong public policy of this state. Any marriage between persons of the same sex shall have no legal force or effect in this state and, if attempted to be entered into in this state, is void ab initio and shall not be recognized by this state.

(2) Any marriage entered into by persons of the same sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.

(3) The recognition or extension of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state. Any public act, record, or judicial proceeding of this state, as defined in section 9.82 of the Revised Code that extends the specific statutory benefits of legal marriage to nonmarital relationships between persons of the same sex or differ-ent sexes is void ab initio. Nothing in division (C)(3) of this section prohibits the extension of specific benefits otherwise enjoyed by all persons, married or unmarried, to nonmarital relationships between persons of the same sex or different sexes.

(4) Any public act, record, or judicial proceeding of any other state, country, or other jurisdiction outside this state that extends the specific benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.

Section 2. That existing section 3101.01 of the Revised Code is hereby repealed.

Section 3. In enacting new division (C) of section 3101.01 of the Revised Code in this act, all the following apply:

(A) The General Assembly declares and reaffirms the state of Ohio's historical commitment to the institution of marriage as a union between a man and a woman as husband and wife.

(B) The General Assembly declares its intent to define marriage and clarify that relationships that are intended as substitutes for marriage, including but not limited to "civil unions" as provided for in 15 V.S.A. §202 (2000), will not be recognized in this state. It is not the intent of the General Assembly to prohibit the extension of specific benefits otherwise enjoyed by all persons, married or unmarried, to relationships between persons of the same sex or different sexes.

(C) The General Assembly declares its intent not to make substantive changes in the law of this state that is in effect on the day prior to the effective date of this act with respect to the validity of marriages heretofore occurring within this state.

SIGNIFICANCE

Ohio's DOMA, considered to be the most restrictive of all such laws, goes much farther in restricting the rights of same-sex couples than the federal DOMA. Authored by state Representative Bill Seitz of Green Township, the act used language that appeared in the original federal DOMA, outlawing any extension of the benefits of marriage to non-married couples or same-sex couples. That language was removed from the federal bill before it was passed by the U.S. House and Senate.

The text of the act alarmed gay rights activists, for a strict interpretation of the law in court could lead to the stripping of all legal agreements made in lieu of marriage. Many same-sex couples use legal procedures to create the approximation of marital rights, such as medical powers of attorney or legal arrangements for guardianship of children. Under Ohio's DOMA, these legal procedures could be nullified, leaving same-sex couples with no way to provide domestic partner benefits and no legal protections for their relationships or the children of these relationships. In addition, not only does the act prevent the recognition of same-sex marriages made in other states or countries, it also voids legal arrangements made in other states, such as financial agreements or custodial arrangements.

On November 6, 2004, Ohio governor Robert Taft signed the Ohio Defensive of Marriage Act into law, making Ohio the thirty-eighth state in the United States to have a Defense of Marriage Act. The act, placed on the ballot during the 2004 presidential election, was overwhelmingly approved by voters in a sixty-two percent for, thirty-seven percent against, vote.

In January 2005, public defenders in Ohio's Cuyahoga County used the DOMA as a defense against domestic violence charges. Claiming that the 2004 DOMA invalidates domestic violence charges against unmarried cohabitating couples, the public defenders asked that the charges against their clients be reduced to that of assault. The difference between a "domestic violence" charge and an "assault" charge under Ohio law is significant. Assault carries a first-degree misdemeanor charge only, regardless of the number of times that a person is charged with the offense. Domestic violence charges, however, have escalating degrees; the first charge is a misdemeanor, but subsequent events can lead to felony charges.

Social service agencies, in many instances, are only permitted to provide counseling to victims of domestic violence vs. assault; funding for such agencies is tied to a domestic violence charge. This unintended consequence of the Ohio DOMA is one that state Representative William J. Healy of Canton proposes to change with House Bill 161, which would change Ohio law to allow for the domestic violence charges to be applied to unmarried couples.

Same-sex marriage opponents, such as the Family Research Council, call Ohio's act a "Super-DOMA." FRC considers the Ohio act to be a model for other states to follow; as the thirty-eighth state to pass a DOMA, Ohio became a symbol of the country's ability to ratify an amendment to the U.S. constitution banning same-sex marriage.

FURTHER RESOURCES

Books

Dobson, James. Marriage Under Fire: Why We Must Win This Battle. Sisters, Ore.: Multnomah, 2004.

Gerstmann, Evan. Same-Sex Marriage and the Constitution. New York: Cambridge University Press, 2003.

Periodicals

Adam, Barry D. "The Defense of Marriage Act and American Exceptionalism: The 'Gay Marriage' Panic in the United States." Journal of the History of Sexuality 12 (April 2003): 259-276.

Web sites

DOMA Watch. 〈http://www.domawatch.org〉 (accessed February 15, 2006).

Lambda Legal. "Marriage Project." 〈http://www.lambdale-gal.org/cgi-bin/iowa/issues/record?record=9〉 (accessed February 20, 2006).

National Organization for Women. "Same Sex Marriage is a Feminist Issue." 〈http://www.now.org/issues/lgbi/marr-rep.html〉 (accessed February 15, 2006).

NPR.org. "Calif. Judge Rejects Ban on Same-Sex Marriage." 〈http://www.npr.org/templates/story/story.php/〉 (accessed February 15, 2006).

Thomas.gov. "Defense of Marriage Act." 〈http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396.ENR:〉 (accessed February 15, 2006).