Law & Disorder

Two for the Price of One This Week

By A.J. Wagner

A few weeks back, I wrote of the effort to undo the Ohio Constitution’s ban on gay marriage and gay anything that looks like a marriage. I advised that if you want to get involved in a ballot initiative to allow same sex marriage you should contact Equality Ohio. I was wrong. Equality Ohio, although favoring marriage equality, believes more groundwork should be completed before placing a marriage amendment on the ballot. Freedom to Marry Ohio is the group seeking a ballot initiative this year or next, and last week they won an important legal battle to accomplish their objective.

The Ohio Campaign to Protect Marriage, an anti-gay marriage group, petitioned the Ohio Supreme Court to undo Attorney General Mike DeWine’s approval of ballot language for the initiative. The group argued that the summary put forth by Freedom to Marry “is not a summary and is not a fair and truthful statement of the proposed constitutional amendment.”

DeWine defended his position by asking the court to dismiss the lawsuit because he, as Attorney General, is responsible for the pre-certification process for ballot initiatives. For the Supreme Court to take jurisdiction and rule on the matter would be a breach of the separation of powers. DeWine made it clear he did not agree with the issue but must approve language when it is a concise and accurate representation of what that ballot initiative would do, even if he believes it to be unconstitutional.  The case was dismissed in a 5-2 vote with Justices Terrence O’Donnell and Robert Cupp dissenting.

Freedom to Marry Ohio will have to gather roughly 385,000 signatures to put the measure before voters in November 2013. If you would like to pitch in, give them a google and sign up. Because Freedom to Marry Ohio is headed up by my good friends, Columbus City Council President, Andy Ginther and former Congresswoman Mary Jo Kilroy, I favor the petition. I caution, however, that Equality Ohio’s arguments are not without merit. Take a good look at the arguments put forth by both of these important advocacy groups and decide where you stand.

If the U.S Constitution means anything, this battle will eventually be won in the courts.

The Supreme Court also decided, last week, to put the permanent nix on smoking in bars. Although citizens approved a constitutional amendment in 2006 banning smoking in public places, several bars objected to the ban saying it was an unconstitutional taking of their property and an illegal use of police powers.

In a 7-0 opinion written by Ohio Justice Judith Ann Lanzinger, she stated, “The goal of this legislation is to protect the health of the workers and other citizens of Ohio.” She continued, “It does so by regulating proprietors of public places and places of employment in a minimally invasive way.”

Citing a 2002 Supreme Court decision, D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, Justice Lanzinger noted: “We have previously stated that the General Assembly has the authority to enact a public-smoking ban. … Although the Smoke Free Act was ultimately passed pursuant to a ballot initiative, the voters of Ohio also have a legitimate purpose in protecting the general welfare and health of Ohio citizens and workforce from the dangers of secondhand smoke in enclosed public places.  By requiring that proprietors of public places and places of employment take reasonable steps to prevent smoking on their premises by posting ‘no smoking’ signs, removing ashtrays, and requesting patrons to stop smoking, the act is rationally related to its stated objective.”

Attorney General Mike DeWine was again on the hot seat while defending the state’s laws. This time he liked the result. “This is great news for the health of Ohioans and for the democratic process,” DeWine said. “The Ohio Supreme Court has upheld a law passed by a statewide majority of Ohio voters, and patrons and employees of Ohio businesses will continue to enjoy surroundings that are safer because they are smoke-free.”

The suit was brought by Zeno’s Victorian Village in Columbus which had been cited 10 different times between July 2007 and September 2009. The 1851 Center for Constitutional Law argued for the bar that the smoking ban was supposed to be enforced against smokers, not businesses.

Zeno’s now owes more than $40,000 in fines and could find the bar seized by state authorities if the fine isn’t paid. Bars across Ohio that have ignored the ban now owe millions in fines to the state.

The bars will now go to the legislature to seek relief from the ban. Since the ban is written into the state’s constitution that will be a tall order. But why worry about the constitution, voted on by the people, when there are campaign contributions to be earned?

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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