When Romer met Feeney: why the second sentence of the Ohio Marriage Amendment violates equal protection.

• Author: Yasinow, Melissa A.

On November 2, 2004, Issue 1, known as the Ohio Marriage Amendment, passed with 52% of the popular vote. (1) The Amendment reads:

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. (2) In the wake of Goodridge v. Department of Public Health, (3) which legalized same-sex marriage in Massachusetts, and Baker v. State, (4) which mandated civil unions in Vermont, same-sex marriage opponents argued that the Ohio Marriage Amendment was necessary to prevent the march of same-sex marriage and civil unions into the Midwest. The passage of the Ohio Marriage Amendment achieved this goal. Unless the Amendment is either repealed or declared unconstitutional, couples in same-sex marriages and civil unions cannot receive legal recognition in Ohio. (5)

Despite the certainty the Amendment brought to same-sex marriages and civil unions, the fate of Ohio's domestic partnership registries and benefits programs is in legal limbo. David R. Langdon is the author of the Ohio Marriage Amendment and serves as counsel to Citizens for Community Values ("CCV"), (6) the main sponsors of the Amendment. (7) David R. Langdon has also represented the plaintiffs in all three cases challenging the constitutionality of Ohio's domestic partnership programs. In Brinkman v. Miami University, (8) former Ohio State Representative Tom Brinkman, a close associate of CCV President Phil Burress, claimed that Miami University's same-sex domestic partnership benefits policy violated the second sentence of the Ohio Marriage Amendment. (9) In City of Cleveland Heights ex rel. Hicks v. City of Cleveland Heights, (10) former Cleveland Heights Councilman Jimmie Hicks challenged the constitutionality of Cleveland Heights' domestic partner registry under the Ohio Home Rule Amendment. In Cleveland Taxpayers for Ohio Constitution v. City of Cleveland, (11) Langdon argued that Ohio's Home Rule Amendment and the second sentence of the Marriage Amendment prohibited the City of Cleveland from maintaining its domestic partner registry. Although the courts in all three of these cases held in favor of the defendants, (12) this area of Ohio law is not yet settled. (13) This Note asserts that the second sentence of the Ohio Marriage Amendment is a violation of the Equal Protection Clause of the Fourteenth Amendment. Instead of arguing that Ohio's domestic partnership registries and benefits programs are compatible with the Ohio Marriage Amendment, which may very well be the case, (14) this Note argues that the second sentence of the Marriage Amendment is a sophisticated form of discrimination specifically targeting gays and lesbians, and not, as the Amendment's text states, "unmarried individuals."

This Note proceeds as follows: Part I lays out the litigation inspired by the Ohio Marriage Amendment. Part II explains the differences between civil unions and domestic partnership programs across the country and in Ohio. Part III provides a brief survey of state marriage amendments. Part IV discusses United States Supreme Court precedent concerning LGBT rights and equal protection analysis in cases with facially neutral laws. In the first half of this section, this Note looks at the impact of Romer v. Evans (15) and Lawrence v. Texas, (16) two landmark cases that address LGBT legal issues. The second half of this section discusses Washington v. Davis, (17) Village of Arlington Heights v. Metropolitan Housing Development Corp., (18) and Personnel Administrator v. Feeney, (19) three cases where the Supreme Court analyzed facially neutral laws that had a disproportionate impact upon either racial minorities or women. In these cases, the Supreme Court held that a facially neutral law would be unconstitutional only if 1) the law had a disproportionate impact on an unnamed group and 2) the law was always intended to harm that unnamed group. Although the Supreme Court upheld the challenged laws in Davis, Arlington Heights, and Feeney, these cases laid the groundwork for a finding that the second sentence of the Ohio Marriage Amendment is unconstitutional.

Part V argues that the removal of Ohio's domestic partnership registries and benefits programs would have a disparate impact on gays and lesbians. This section establishes that same-sex couples make up the majority of the couples in Ohio's domestic partnership registries and public health benefits programs.

Part VI argues that the Ohio Marriage Amendment was always intended to disproportionately impact same-sex couples, and not just unmarried individuals. This conclusion is supported under three different theories. First, Section A argues that attacks against domestic partnership programs, even those that are gender-neutral, inherently target gays and lesbians. To accomplish this objective, this Note analyzes the history of domestic partnership programs in the United States and Ohio, and determines that the primary purpose of these programs is to benefit gays and lesbians who are prohibited from marrying. Therefore, campaigns against domestic partnership programs are necessarily campaigns against these programs' intended beneficiaries: same-sex couples.

Second, Section B of Part VI contends that CCV and the Ohio Campaign to Protect Marriage ("OCPM"), a political action committee controlled by CCV, misled Ohio voters about the Amendment's scope and abused Ohio's ballot initiative process. Section B is comprised of three subsections. The first subsection chronicles the significant vulnerabilities and criticisms of the ballot initiative process.

The second subsection establishes that CCV bears animus towards gays and lesbians and openly advocates for state-sponsored discrimination against Ohio's LGBT community. Although CCV claims it is not "against" same-sex couples, this Note shows that CCV is officially associated with two antigay hate groups, and that CCV advocated the same opinions against gays and lesbians as Colorado for Family Values ("CFV"), the sponsors of Colorado's animus-driven Amendment 2.

The third subsection uses CCV's own advertisements and statements to show that it confused and manipulated the public over Issue 1's impact. Specifically, this Note demonstrates that CCV always intended to attack Ohio's domestic partnership programs with the Marriage Amendment, but that CCV never divulged this intent in its advertisements. Moreover, CCV's advertisements either confused voters about the fate of Ohio's domestic partnership programs, or explicitly asserted that Issue 1 would not affect these institutions.

Finally, Section C of Part VI argues that if Ohio's public domestic partnership programs are ever declared unconstitutional, then the effects of this decision would be so broad and harmful to Ohio's LGBT community that the second sentence of the Marriage Amendment would automatically betray an intentional, and unconstitutional, antigay animus. If Ohio's domestic partnership programs are invalidated under the second sentence of the Ohio Marriage Amendment, then all of Ohio's public institutions would be prohibited from recognizing same-sex couples, even down to the municipal level. This end result would have significant consequences for same-sex couples, forcing the State to treat them as legal pariahs. This total prohibition of same-sex-couple recognition would prove that the Ohio Marriage Amendment contains antigay animus because 1) under Lawrence, gays and lesbians have a Fourteenth Amendment fight to form same-sex couples, 2) same-sex couples can never leave the "unmarried class" under Ohio law, and 3) under Romer, such broad and far reaching effects against gays and lesbians throughout the entire State of Ohio cannot be a legitimate governmental interest.

Part VII concludes that because the invalidation of Ohio's domestic partnership programs would disproportionately impact same-sex couples, and because the purpose of the second sentence of the Ohio Marriage Amendment is to harm Ohio's LGBT community, the second sentence of the Ohio Marriage Amendment must violate the Equal Protection Clause of the Fourteenth Amendment.

1. LITIGATION RESULTING FROM THE OHIO MARRIAGE AMENDMENT

   Shortly after Ohio adopted its Marriage Amendment in 2004, the legality of Ohio's domestic violence statute, (20) domestic partnership benefits programs, (21) and domestic partnership registries were thrown into doubt. (22) In 2005, a trial court in State v. Burk (23) declared that Ohio's domestic violence law, which grants domestic violence protection to "a person living as a spouse," (24) violated the second sentence of the Ohio Marriage Amendment. (25) Although this decision was later reversed at the appellate level, (26) it opened the floodgates for similar litigation and caused a split amongst Ohio's appellate courts. (27)

   In July 2007, in State v. Carswell, (28) the Supreme Court of Ohio resolved the split and held that Ohio's domestic violence statute did not violate the second sentence of the Ohio Marriage Amendment. (29) In coming to its conclusion, the Court announced that "the second sentence of the amendment means the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage--a marriage substitute." (30) Despite the boldness of this declaration, which appears to protect Ohio's domestic partnership programs and limit the scope of the Amendment's second sentence only to "marriage substitutes," there is cause for concern among Ohio's gay-rights activists.

   First, in Carswell, the Court indicated in a footnote that Ohio's domestic partnership benefits programs might violate the Marriage Amendment. (31) Citing Ohio Revised Code Section 3101.01(C)(3), the Court noted, "regarding...