Ohio’s Gay Marriage Ban Inviting Lawsuits Over Pre-Existing Contracts

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A year ago, the attorney who wrote Ohio’s ban on civil unions said it wouldn’t affect the few public universities already offering health insurance to employees’ same-sex partners. Now he’s suing to overturn the benefits at one of those universities.

Other schools offering the benefits say they aren’t changing their policies but are watching the lawsuit against Miami University closely.

Challenges like this and similar court fights over custody and domestic violence are inevitable because the language of the constitutional amendment is so vague, a constitutional law expert said.

“There are going to be more of these kinds of challenges … not to say the challenge is correct or going to win,” said David Goldberger, law professor at Ohio State University.

David Langdon, the Cincinnati attorney who wrote the amendment, said the language was intentionally broad and he hasn’t switched any positions on its effects.

“Anyone that suggests that had we used different terminology there wouldn’t be litigation, would be a fool,” he said. “It’s not about the benefits; it’s about the status of marriage and the unique nature of that relationship.”

Langdon said his argument last fall was that existing union contracts conferring the benefits would not be rescinded. Because Miami’s faculty didn’t get the benefits through a labor agreement, they aren’t protected.

Langdon expects the case to take years to wind through the courts. Meanwhile, he said, existing contracts are likely to expire, so renewing the benefits would violate the amendment.

“He has a very formidable obstacle in my view,” said state Rep. Bill Seitz, the Cincinnati Republican who sponsored a less strict law banning gay marriage, also written by Langdon. The court is not likely to throw out benefits that were granted before the amendment passed, he said.

A few public universities started offering the benefits, mostly through labor agreements, before the ban passed. A small number of employees have signed up, ranging from two at Youngstown State University to 106 at Ohio State University.

The schools expected a lawsuit, and have worked with the state attorney general’s office on a legal analysis, said John Burns, legal affairs director at Ohio University.

“We think we can make good arguments of why the benefits for schools are not prohibited in the constitutional amendment,” he said.

Other pending cases deal with the amendment’s effects on child custody and the state domestic violence law.

Denise Fairchild, of Columbus, is fighting to cancel visitation rights for her biological son from her ex-partner, Therese Marie Leach. The boy, conceived through artificial insemination, was born while the women were still a couple. Fairchild has said she voted against the ban, but must use it in her legal battle.

About a dozen cases in county courts argue whether the amendment nullifies protections under the state domestic violence law if the couple is unmarried. The law says it applies to spouses or those “living as a spouse.”

Langdon has written a motion seeking to throw out a domestic violence case under appeal from Montgomery County, arguing that the court should not water down the amendment. He suggests the Legislature can fix the law by changing the phrase to “household member.”

The ban, Issue 1 on last year’s November ballot, passed by 62 percent. In debates before the election, supporters promised the intent wasn’t to dilute domestic violence protections, said Professor Marc Spindelman, an Ohio State law professor who opposed the measure.

“The meaning of Issue 1 that we were promised is not the meaning of Issue 1 that its proponents are trying to get the courts to enforce,” Spindelman said.