Monday, March 12, 2012

Analysis: Mike DeWine's rejection of the petition to put marriage equality on the ballot in Ohio

Freedom to Marry Ohio has been collecting signatures to get an amendment to the Ohio state constitution on the ballot which would recognize same-sex marriage. Today the news came down that Ohio attorney general Mike DeWine, a well-known opponent of marriage equality, rejected the petition. He had three purported reasons:
  1. The summary is longer than the amendment.

  2. The summary states that "political subdivisions" would not have to "recognize a legal status for relationships of unmarried individuals", while (DeWine claims) the amendment itself says no such thing.

  3. The summary states that the amendment "retains the portions of Title 31 that codifies this Amendment", while the amendment itself makes no reference to Title 31.

So, being the pedantic skeptic I am, my first thought was: Sure, DeWine has plenty of motivation to find reasons to deny this petition -- but that doesn't automatically mean the reasons are illegitimate. There might be legitimate problems with the petition despite DeWine's nefarious motivations.

After doing some digging, I think the first and third complaints are complete and utter bullshit. The second complaint might be legitimate, although I'm somewhat mixed on it. It's certainly a red herring, but it may be a technically valid reason to deny the petition.

Overlong summary

First, the summary-longer-than-amendment thing... DeWine cites a piece of Ohio constitutional case law called "State ex rel. Hubbell v. Bettman, 124 Ohio St. 24, 176 N.E. 664 (1931)". I did not find the original decision, but I did find that DeWine's predecessor denied an amendment petition citing the same case, and explaining some of the reasoning.

At first blush, it looks like DeWine is legit: The Hubbell court did indeed explicitly complain that a "summary" is not much of a summary if it is longer than what it proposes to summarize, and other Ohio AG's have cited it thusly. But here's the problem: In both the original Hubbell case, as well as in the petition denied by former Ohio AG Nancy Rogers, both the amendment and its summary were several pages long. The Hubbell court rightly ruled that if the purpose of a summary is to make the proposed law understandable to the average voter, a summary of a couple dozen pages is not of much use.

By contrast, Freedom to Marry Ohio's proposed amendment is 72 words by my count. We will get to the full text of it in a moment, but suffice to say it is a very small change to the Ohio Constitution, but one which has a ripple effect on existing Ohio law. It only makes sense in this case that the summary would elaborate on that ripple effect. This is a clear misapplication of Hubbell.

Title 31

I'm now going to skip ahead to the Title 31 thing, because this is also an easy one with a crystal clear answer. First, some background: Article XV, Section 11 of the Ohio state constitution defines marriage. It is part of the state constitution and thus cannot be easily changed by the legislature. Title 31, on the other hand, is Ohio's revised code for domestic relationships. It is legislation -- i.e. not part of the constitution -- which spells out the details of Ohio law in relation to marriage.

The full text of Article XV, Section 11, is as follows:

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.

The proposed amendment would replace that with:

In the State of Ohio and its political subdivisions, marriage shall be a union of two consenting adults not nearer of kin than second cousins, and not having a husband or wife living, and no religious institution shall be required to perform or recognize a marriage.

Note that neither the existing version nor the proposed change mention Title 31. Nor would it make any fucking sense if they did: This is Ohio's constitutional definition of marriage, and Title 31 is supporting legislation which details how that constitutional definition shall be implemented. There is no need to mention it.

In fact, if the amendment did mention it, that would muddy up Ohio's constitution something awful, as it puts the cart before the horse: The legislation only makes sense within the framework of the constitution, so having a part of the constitution make reference to legislation just makes no sense at all. Hell, what would happen if the Ohio state legislature voted to strike Title 31 and instead moved the marriage code elsewhere in the Ohio lawbooks? The constitution would stop making sense until another amendment was passed. That's just dumb.

Not only is it unnecessary for the proposed amendment to mention Title 31, it is highly desirable that it doesn't mention it. Moreover, since the proposed amendment affects the interpretation of Title 31, it is also highly desirable that the summary does mention it. DeWine's objection, while factually accurate, is simply ludicrous once you put it in context.

Legal status for relationships of unmarried individuals

The final point, on this right of "political subdivisions to not recognize a legal status for relationships of unmarried individuals" thing, is a little murkier. Return again to the full text of the existing Section 11 above, and note the second sentence. What this says in plain English is, "Domestic partnership laws are out, too." Ohio will not recognize any arrangement that attempts to approximate marriage, no matter what you call it.

Now, arguably this is a moot point if Ohio recognizes same-sex marriage. The only reason anybody wanted that provision is to deny domestic/civil partner status to same-sex couples, so if same-sex couples can get married then nobody cares about that aspect of it.

But if the summary portion of the petition really did say that the protections afforded by this part of the existing section were being retained, then that is factually false, at least by my reading. Unfortunately I have not been able to locate the full text of the summary (Freedom to Marry Ohio has a, erm, summary of the summary, but I can't find the whole thing) so I don't know if DeWine is accurately representing the summary. Based on his other two arguments against the petition, I am skeptical.

Does it matter? I'm not sure. Technically, the Ohio state legislature would now be free, for example, to recognize polygamy in a sort of "multi-partner domestic partnership", as long as they didn't call it "marriage", whereas with the existing Section 11 they would be constitutionally barred from doing so. Certainly at present there is absolutely zero chance of that happening; only same-sex domestic partnerships were realistically on the table at the time the existing Section 11 was codified. But I could potentially see a pro-same-sex marriage anti-polygamy voter who would be concerned about this as a future possibility.


Anyway, that's my analysis. Two of DeWine's arguments are complete bullshit, an obvious move to quash the petition with legal smoke and mirrors. One of them I am less sure about. If I could find the full text of the summary, I might be able to say something more definitive. But if DeWine accurately represented the summary in that regard (a big "if", I must say!), then there is probably a reasonable argument in his favor.

Update: I found the full text of the initiative petition. The summary here contains two bullets which are not listed any longer on the summary as it appears on Freedom to Marry Ohio's website, specifically:

4. Retain the rights of section 11 of Article XV for political subdivisions to not recognize a legal status for relationships of unmarried individuals;
5. Retain the portions of Title 31 that codifies this Amendment.

As I wrote before, I do not think the amendment as written does preserve the existing Section 11's disposition in regard to the "legal status for relationships of unmarried individuals." This bullet point is actually a little confusing to me, because the existing Section 11 explicitly prohibits Ohio or any of its political subdivisions from recognizing a marriage-like status for unmarried individuals, whereas this bullet point seems to be interpreting it as political subdivisions having a right not to recognize a legal status that is recognized at the state level. Either I'm misreading the summary, or the author of the summary misread the existing law.

I am sorry to say it, but I think Freedom to Marry Ohio may have screwed the pooch here. I do not understand what they mean by point 4 in the summary, and I feel that it carries misleading implications. DeWine's other two reasons are clearly grasping at straws, but this part, despite being somewhat of a technicality, may be legitimate grounds for denying the petition.


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