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Ohio AG rejects same-sex marriage referendum petition

Marriage equality

By Adam Bink

On March 4, we reported that efforts were underway to bring same-sex marriage to a ballot vote in Ohio as early as this year. Backers had to submit signatures to have the ballot language considered, then go and collect several hundred thousand signatures to actually move the measures to the ballot.

However, on Friday, Attorney General DeWine (an opponent of same-sex marriage, and the same Mike DeWine who supported a federal constitutional amendment to ban same-sex marriage) rejected the proposal on subdued legal grounds, writing:

After reviewing the submission, I conclude that I am unable to certify the summary as a fair and truthful statement of the proposed constitutional amendment for three reasons. First, the summary is longer than the text of the amendment… Second, the summary states that the amendment retains the rights contained in “Section 11 of Article XV for political subdivisions to not recognize a legal status for relationships of unmarried individuals.” However, the text of the amendment does not indicate that political subdivisions would retain these rights. Third, the summary states that the amendment retains “the portions of Title 31 that codifies this Amendment.” However, the text of the amendment does not contain any reference to Title 31.

It’s not clear what, if any, recourse backers have except perhaps through the courts to move forward with this issue.

23 Comments

  • 1. Sagesse  |  March 12, 2012 at 9:12 am

    @

  • 2. jpmassar  |  March 12, 2012 at 9:24 am

    Why can't they just rewrite the summary?

  • 3. jpmassar  |  March 12, 2012 at 9:25 am

    Anyone have a link to the actual ballot initiative?

  • 4. Jim  |  March 12, 2012 at 10:35 am

    Elections have consequences. Not voting has consequences. This should be a lesson to all LGBT eligible voters get out there and vote, otherwise we suffer the consequences.

  • 5. Seth from Maryland  |  March 12, 2012 at 10:52 am

    theres needs to be a lawsuit , this total BS

  • 6. Shannon B Rumsey  |  March 12, 2012 at 11:12 am

    I believe that signatures for the first summary could not be applied to the second summary. They would have to begin the signature process from the beginning.
    IANAL

  • 7. James Sweet  |  March 12, 2012 at 12:55 pm

    That's California, though. I have not pulled up the court case to verify whether this is quote-mining or a valid interpretation of Ohio case law, but DeWine's office offered the following justification:

    The Ohio Supreme Court has expressly rejected a summary that was longer than the amendment the summary purported to summarize because it did not meet the "spirit and purpose of the statute." State ex rel. Hubbell v. Bettman, 124 Ohio St. 24, 176 N.E. 664 (1931) ("There would manifestly be no point to having a summary…unless the summary is just what the definition of the term expresses…")

    It is probably a safe assumption that DeWine's office was deliberately looking for a way to smack this down. That doesn't necessarily mean that he isn't technically right; I frankly have no idea. Any Ohio lawyers specializing in constitutional law reading this?

  • 8. James Sweet  |  March 12, 2012 at 1:03 pm

    Okay, after some more digging, I think this is a bullshit attempt to reinterpret Ohio legal precedent.

    Now, there is precedent here in Ohio law for rejecting petitions which used over-long summaries. A previous Ohio AG (Nancy Rogers) rejected a ballot initiative on similar grounds in 2008:
    http://www.ohioattorneygeneral.gov/getattachment/

    However, in both that case and in Hubbell, both the proposed amendment and summary were hella long — like several pages long! I do not believe that to be the case here, although TBH I am not sure I am looking in the right place. Freedom to Marry Ohio purports to offer the summary and amendment here (click on "Read the issue"; sorry, they are using JavaScript to serve up the content so I can't provide a direct link) and by my count, the summary there is 45 words and the amendment 72. Huh…

  • 9. James Sweet  |  March 12, 2012 at 1:06 pm

    That appears to be the case. The purpose of the summary is so that the people signing the petition know what they are signing. If the summary is deficient, they'd have to collect the signatures all over again.

    As I described above, however, I think DeWise is using a distorted interpretation of Ohio case law. He cites a case in which the proposed amendment was several pages, in which the justices ruled (quite reasonably, IMO!) that a summary which was even longer than that did nothing to clarify for the voter the purpose of the initiative. I believe both the amendment and the summary in the case at hand are less than 100 words, so the same reasoning doesn't really apply.

    I don't know about the other two reasons he cited, but I'm feeling dubious given how much of a stretch it is to conclude that Hubbell applies to this petition…

  • 10. James Sweet  |  March 12, 2012 at 1:53 pm

    Okay. I did some serious digging, and my conclusion is this: The first and third reasons that DeWine gives are complete and total BS. The former rests on a distortion of Ohio constitutional case law; and the latter, while technically true, is a patently absurd objection that simply makes no sense. The Amendment would be broken if it mentioned Title 31, so there's no way it could have been included in the text of the Amendment. But Title 31 will be interpreted differently as a result of the Amendment, so it is perfectly reasonable to have mentioned it in the summary. DeWine is probably relying on the fact that most people have no idea what he is saying, because if you do know what he is saying, it's laughable.

    The second objection, however — that the summary claims "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 — may have some merit. Unfortunately I cannot find the full text of the summary anywhere online, but if DeWine accurately represents it (a rather ginormous "if" given how disingenuous the rest of his objections are!) then his criticism is both technically accurate and possibly describes a legitimate problem.

    My full analysis is here.

  • 11. Bruce Kenyon  |  March 12, 2012 at 3:42 pm

    Personally, I do not think that LGBT people should support ANY referendum as a legitimate method of approaching gay rights. It lends credence to the concept that civil rights are appropriately decided by majority vote. Had this approach been utilized in the 60's, we STILL wouldn't have equal rights for Black Americans, nor would inter-racial marriage be legal. The religious right LIKES the "vote of the people" on a state-by-state basis, because it is easier for them to poison a smaller voting pool, and to interfere with the process by throwing money at it, just as happened in California with Proposition 8. This is a NATIONAL issue, and should be addressed in that forum.

  • 12. James Sweet  |  March 12, 2012 at 4:05 pm

    There's something to be said for that line of reasoning, but remember: Historically, SCOTUS has been reluctant to make ruling which they feel are too far ahead of popular sentiment. We can decry the apparent wrongness of that fact, but it doesn't change the reality of it. Right or wrong, ballot box victories improve the odds of future Supreme Court victories.

    I am not familiar enough with the history of the civil rights movement to be certain, but I believe that legislative remedies were pursued with equal vigor as judicial remedies. Yes, the problem cannot be solved for good without a SCOTUS ruling, but there is a synergy to pursuing both paths in parallel.

  • 13. Str8Grandmother  |  March 12, 2012 at 5:46 pm

    James here I was able to copy the language so we can all look at the actual language.

    Be it Resolved by the People of the State of Ohio that Article XV, Section 11 of the Ohio Constitution be adopted and read as follows: Section 11. 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. (SGM- word count is 74)

    (The Section below is being repealed)
    Section 11. 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.

  • 14. Str8Grandmother  |  March 12, 2012 at 5:48 pm

    Oh and I agree with you James S. This is total BS.

  • 15. Str8Grandmother  |  March 12, 2012 at 5:53 pm

    Bruce, I kinda agree with you. Well actually I do agree with you. I think it is demeaning to beg your fellow citizens to vote for your rights. With that said however, I do think there is a merit in these campaigns because it puts issues that we care about out in front in the news and in the State and local communities. If we loose we just add that on as proof that Sexual Minorities ARE being discriminated against and hopefully this will continue to push us into a higher level of Judicial Scrutiny. But I am with you, I hate begging, it is just so demeaning.

  • 16. Straght4Equality  |  March 12, 2012 at 10:07 pm

    Perhaps I am confused, but the summary at the Freedom to Marry Ohio doesn't mention the things DeWine complains about. If this is the actual summary submitted, then it is definitely BS. Here's the summary the website gives:

    Summary
    This amendment would repeal and replace Section 11, Article XV of the Constitution to:
    1. Allow two consenting adults freedom to enter into a marriage regardless of gender;
    2. Give religious institutions freedom to determine whom to marry;
    3. Give religious institutions protection to refuse to perform a marriage.

  • 17. James Sweet  |  March 13, 2012 at 11:49 am

    Ah hah, I found the full summary as submitted to the AG's office. It contains two more bullets which are not on Freedom to Marry Ohio's website:

    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.

    http://www.ohioattorneygeneral.gov/getattachment/

    As I mentioned in my earlier comment, I think DeWine might have a point in regards to bullet (4) of the summary. By my reading of the Amendment, it would indeed modify how Section 11 applies to the legal status for relationships of unmarried individuals. As I write on my blog:

    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.

    I think Freedom to Marry Ohio is realizing they screwed up by adding bullets 4 and 5 to the summary (although I think bullet 5 is entirely acceptable) and that's why those no longer appear on the website. It's a pisser, this is definitely a technicality, and out of DeWine's three points, two of them are clearly invalid. Unfortunately, this one about "legal status for relationships of unmarried individuals" appears as though it might be a technically valid objection. :( :(

  • 18. James Sweet  |  March 13, 2012 at 11:58 am

    The more I think about it, the more I think that Freedom to Marry Ohio may have screwed the pooch here. Bullet point #4 in the summary doesn't even make any sense. To quote again from my blog:

    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.

    Point 4 does not seem to accurately reflect the existing law, and it carries misleading implications. It's sad to see something like this fail on a technicality, but I'm no longer convinced that DeWine's rejection is illegitimate. The other two arguments he makes are clearly grasping, but this one seems to have some merit, I'm afraid.

    (Waiting for the thumbs-downs to descend on this comment… heh…)

  • 19. Ohio AG rejects same-sex &hellip  |  March 13, 2012 at 4:50 pm

    [...] move the measures to the ballot. However, on Friday, [...] You may view the latest post at http://www.prop8trialtracker.com/2012/03/12/ohio-ag-rejects-same-sex-marriage-referendum-petition/ Rate this: Share this:EmailTwitterLike this:LikeBe the first to like this post. Posted by [...]

  • 20. Prop 8 Trial Tracker &raq&hellip  |  April 3, 2012 at 4:30 pm

    [...] certification comes after DeWine’s refusal last month to authorize the proposed ballot language. He suggested a few reasons for denying certification at [...]

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