By Maggie Thurber | Ohio Watchdog

TOLEDO — The City of Toledo is considering legislation that would extend health insurance benefits to domestic partners (same and opposite sex) of all employees.

Some individuals object to this on a moral basis. Several members of the Toledo City Council have questioned the additional cost (still undetermined and dependent upon how many employees participate), especially considering the major concessions city unions have just agreed to. Still others have suggested that the council should send this measure to the public for a vote.

What no one has yet mentioned, and what may be the biggest obstacles to the measure, is Ohio’s own Defense of Marriage Act THAT was signed into law in May 2004 and, more importantly, its Defense of Marriage Constitutional Amendment.

The May law states:

The recognition or extension by the state of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state. Any public act, record, or judicial proceeding of this state, as defined in section 9.82 of the Revised Code, that extends the specific statutory benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes is void ab initio.

Void ab initio means “invalid from the outset.”

The Ohio Revised Code (ORC) defines state as:

“State” means the state of Ohio, including, but not limited to, the general assembly, the supreme court, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, institutions, and other instrumentalities of the state of Ohio. “State” does not include political subdivisions.

For purposes of the judicial liability program, “state” means the supreme court, the courts of appeals, the courts of common pleas and any division of courts of common pleas, municipal courts, and county courts.

“Political subdivision” means a county, city, village, township, park district, or school district.

While the law may allow the City of Toledo to extend these benefits, the Toledo Municipal Court, which is covered under the City of Toledo benefits plan, would be prohibited from doing so. This is a complication Toledo has not yet addressed.

But it is the Ohio Constitution that presents the greater issue for Toledo. In November 2004, the voters of Ohio approved this amendment which extends the prohibition to all political subdivisions in the state:

§ 15.11 Marriage Amendment

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.

Common sense would indicate that providing benefits to unmarried employees with domestic partners would be approximating the ‘effect of marriage’ as currently only married individuals are currently allowed this coverage.

But law is a strange thing and what appears to be common sense or ‘fairness’ has little place in a court’s duty to interpret a law and its constitutionality.

Certainly the City of Toledo should examine the Ohio Constitution – and a thorough discussion on the Constitutionality of the proposed legislation should take place before any other discussions. Toledo should first ensure they can pass such a law before they debate whether or not they should.