In the past several years, numerous state electorates have amended their state constitutions so as to prevent both their legislatures and their courts from extending the right to marry to same-sex couples. Some states have gone even further, banning not just marriage, but any other type of legal status that provides same-sex couples with some or all of the rights of marriage, such as civil unions or domestic partnerships. Consider, for example, this amendment to the Ohio Constitution, enacted in 2004:
"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."
Recently, a man who physically assaulted his live-in girlfriend and who was indicted for domestic violence invoked the second sentence of this amendment to argue that the state's domestic violence law was unconstitutional to the extent that it applied to people like himself and his girlfriend. His argument was that the statute—which applies not only if the victim is the accused's legal spouse but also if she is "living as a spouse"—violates the second sentence of the statute in that it created "a legal status...approximat[ing]...marriage."
In State v. Carswell, the Ohio Supreme Court rejected this argument, reasoning that the intent of the second sentence of the constitutional amendment was to prevent the state from circumventing the command of the first sentence by creating a status "similar to marriage," such as a civil union. The dissent, however, would rely on the plain text of the amendment to hold the statute unconstitutional, although recognizing this as an "unintended consequence" of the amendment. The opinions can be found at:
Which of the opinions is more persuasive? Which of the opinions is a more favorable one from a gay rights perspective? Most people would say that the majority opinion is more favorable, but is it really? Isn't the dissent's opinion, which forces the broader electorate to deal with the "unintended consequences" of the constitutional amendment, more likely to cause voters in Ohio to reconsider and perhaps vote to repeal such an amendment? Indeed, concerns over such "unintended consequences" made Arizona the first state to reject such an amendment, with many of the "no" votes coming from senior citizens concerned that such an amendment would ban laws that allowed heterosexual senior citizens to enter into domestic partnerships (laws designed to allow them to get some of the benefits of marriage without having to give up some social security benefits).