The Shocking Truth About Ohio Marital Law

I. Introduction

“Morality is the custom of one’s country and the current feeling of one’s peers. Cannibalism is moral in a cannibal country.” – Samuel Butler

Just as Samuel Butler explains, morality is not fixed. Although some moral principles seem to transcend time and culture, morality describes the particular values of a specific group at a specific point in time.

When the Ohio Supreme Court held in Mazzolini v. Mazzolini that “[t]he policy of the law is to sustain marriages, where they are not incestuous, polygamous, shocking to good morals, unalterably opposed to a well-defined public policy, or prohibited,”¹Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958) (emphasis added). it left courts with a great deal of uncertainty as to what actions would be considered “shocking to good morals.” At the specific time Mazzolini was decided, same-sex marriages were considered illegal and “shocking to good morals.” Yet, the Mazzolini decision is still good case law, seeming to transcend time and culture. Since a marriage that is “shocking to good morals” may be deemed illegal by a court of law, an analysis is ripe for discussion.

First, Part II of this Article will discuss the background of morality considerations and examine void marriages as compared to voidable marriages. Next, Part III will argue that courts should depart from the “shocking to good morals” language due to its malleable nature. Finally, this Article will conclude in Part IV by reasserting the need for courts and/or the legislature to constrict the definition of void marriages as outlined in Mazzolini by either the Ohio Supreme Court overruling Mazzolini or by the Ohio Legislature adopting meaningful legislation with more clear guidelines on which marriages are considered void and which are considered voidable.

II. Background

A. Morality

The U.S. Supreme Court’s 1992 decision of Planned Parenthood v. Casey was a landmark decision considering morality implications.²Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 833 (1992). There, Planned Parenthood brought suit against Casey, the Governor of Pennsylvania, for the purpose of challenging five restrictions on abortion under Pennsylvania law.³Id. Most significantly, the Pennsylvania statute required informed consent and a 24-hour waiting period for all woman prior to undergoing the procedure.⁴Id. Additionally, all minors seeking an abortion were required to obtain the informed consent of one parent, while a married woman had to show that she notified her husband of her intent to abort the fetus.⁵Id. The Court found that the state abortion regulation placed an undue burden on a woman’s right to an abortion and was invalid because its purpose or effect was to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attained viability.⁶Id. at 834. Importantly, the Court noted that:

We suppose some shall always disagree about the profound moral and spiritual implications of terminating a pregnancy . . . . Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.⁷Id. at 850 (emphasis added). ⁸Note that Supreme Court’s very recent decision in Dobbs v. Jackson Women’s Health Org., 19-1392, 2022 WL 2276808 (U.S. June 24, 2022) overruled Planned Parenthood v. Casey. The Dobbs opinion makes the italicized quote above extremely ironic. The unfortunate reality is that in a post-Dobbs world, Casey does not have the same strength as it once did. This should serve to emphasize the importance of overruling the “shocking to good morals” language.

Then, in 1996, President Bill Clinton signed the Defense of Marriage Act (“DOMA”) into law which defined the word marriage as a “legal union between one man and one woman as husband and wife” and the word spouse as “a person of the opposite sex who is a husband or a wife.”⁹1 U.S. Code § 7. The history of DOMA’s enactment stemmed from a House Report that concluded that “it [was] both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage.”¹⁰H.R. REP. 104-664, 2. The House concluded that DOMA expressed “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional morality.”¹¹Id. at 16 (emphasis added).

After the enactment of DOMA, the states’ denial of the right to marry was predicated on the view that homosexuality was not entitled to equal treatment because it was immoral and, therefore, distinct from heterosexual relations.¹²See U.S. v. Windsor, 570 U.S. 744 (2013). Then, in 2003, the U.S. Supreme Court was asked to consider whether the due process clause of the Fourteenth Amendment included a right to liberty in individual decisions concerning the intimacies of their physical relationship.¹³Lawrence v. Texas, 539 U.S. 558, 558 (2003). In Lawrence v. Texas, police officers were dispatched to the home of John Lawrence in response to a report of weapons disturbance.¹⁴Id. When the police went into the home, they observed Lawrence and Tyron Garner, two men, engaged in a sexual act.¹⁵Id. The State of Texas charged Lawrence and Garner with engaging in deviate sexual intercourse with a person of the same sex, in violation of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.¹⁶Id. The Court invalidated the Texas statute on the ground that it did not further any legitimate state interest which could justify its intrusion into the individual’s personal and private life.¹⁷Id. at 560. The Court also noted that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”¹⁸Id. at 577. Further, the private, consensual activity at issue was within the realm of personal liberty which the government may not enter.¹⁹Id. at 578.

The U.S. Supreme Court then expanded upon this moral issue in the 2013 case of U.S. v. Windsor.²⁰U.S. v. Windsor, 570 U.S. 744 (2013). There, two women, Edith Windsor and Thea Spyer were legally married in Ontario, Canada and returned to New York, which recognized the same-sex marriage.²¹Id. Two years later, Spyer died, leaving her estate to Windsor.²²Id. Windsor claimed the federal estate-tax exemption for surviving spouses but was denied under DOMA.²³Id. Windsor paid the taxes and sued in federal court, challenging the constitutionality of the restriction.²⁴Id. The Court ultimately struck down DOMA, holding that the provision defining marriage as excluding same-sex couples was a deprivation of liberty guaranteed by the Fifth Amendment’s due process clause.²⁵Id. at 746. The Court further stated that the moral and sexual choices of homosexuals are protected by the Constitution.²⁶Id. at 772.

B. Void vs. Voidable Marriages

“Defective” marriages may be void or voidable. Void marriages are void from the beginning and cannot be “cured” or ratified.²⁷MARRIAGE, Black’s Law Dictionary (11th ed. 2019). They are void from the start, without legal effect, as if it they never happened.²⁸Id. Either the spouses or third parties may challenge a marriage as void.²⁹Id. On the other hand, voidable marriages are valid unless and until they are voided.³⁰Id. They are considered legally valid until one of the spouses challenges its validity by an action for annulment.³¹Id. As opposed to void marriages, voidable marriages cannot be challenged by third parties.³²Id.

1. Statutory Law

The Uniform Marriage and Divorce Act (“UMDA”) was an attempt by the National Conference of Commissioners on Uniform State Laws to make marriage and divorce laws more uniform.³³Uniform Marriage and Divorce Act. The UMDA is a model statute that defines marriage and divorce but has been partly enacted only in a few states.³⁴Id. Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana, and Washington have enacted the UMDA. Id. Importantly, the UMDA has not been enacted by Ohio.³⁵Id. Under the UMDA, a marriage may be declared invalid where:

(1) a party lacked capacity to consent to the marriage [at the time it was solemnized,] because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances . . . , (2) a party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time the marriage was solemnized the other party did not know of the incapacity, (3) a party [was under the age of 16 years and did not have the consent of his parents or guardian and judicial approval or] was ages 16 or 17 years and did not have the consent of his parents or guardian or judicial approval, and (4) the marriage is prohibited.³⁶Id.

2. Common Law

Because the UMDA has not been enacted in Ohio, two common law cases govern the law concerning void and voidable marriages. Although a marriage in Ohio between first cousins is not approved by law, it is not expressly prohibited and made void by any statutory enactment.³⁷Mazzolini v. Mazzolini, 155 N.E.2d 206, 207 (Ohio 1958). In 1958, the Supreme Court of Ohio was asked to rule on the marriage between Edward Mazzolini, a resident of Ohio, and Josephine Mazzolini, a resident of Massachusetts, who were first cousins by blood. The couple was married ceremonially in Massachusetts, where a union between first cousins is lawful, then moved to Ohio.³⁸Id. Both were at all times cognizant of their blood relationship and disclosed it to the church and civil authorities.³⁹Id. The marriage proved unsuccessful, and ultimately Josephine returned to Massachusetts.⁴⁰Id. Before Josephine’s return, Edward brought suit in the Court of Common Pleas of Cuyahoga County asking for an annulment of the marriage on the ground that it was void, where the suit was dismissed.⁴¹Id. Edwards then appealed to the Court of Appeals where he was again unsuccessful.⁴²Id. The Supreme Court of Ohio then took the case to consider the question of whether a marriage between first cousins is void in Ohio.⁴³Id. at 208. The court ultimately held that the marriage was not void, holding that “[t]he policy of the law is to sustain marriages, where they are not incestuous, polygamous, shocking to good morals, unalterably opposed to a well-defined public policy, or prohibited.”⁴⁴Id. (emphasis added). Here, the court found that none of those considerations applied to the facts at hand. Thus, the marriage between first cousins was not “shocking to good morals.”

In contrast, in 1979, the Supreme Court of Ohio came to a different conclusion when considering whether a common-law marriage between an uncle and a niece was void or voidable.⁴⁵In re Estate of Stiles, 391 N.E.2d 1026, 1026 (Ohio 1979). The court relied on the majority opinion in Mazzolini that “unless a prohibitory marriage statute expressly declared such marriage void, they were merely voidable.”⁴⁶Id. at 1027. Here, statutory law clearly prohibited the marriage of an uncle to his niece.⁴⁷Id. (quoting R.C. 3101.01). Thus, the court found that the marriage was incestuous and void.⁴⁸Id. Further, the court noted that “such incestuous marriages ‘[are] shocking to good morals’.”⁴⁹Id. (emphasis added).  

III. Discussion

A. Shocking to Good Morals

Prior to the U.S. Supreme Court’s U.S. v. Windsor decision striking down the Defense of Marriage Act as unconstitutional⁵⁰U.S. v. Windsor, 570 U.S. 744 (2013). and its Obergefell v. Hodges decision legalizing same-sex marriages,⁵¹Obergefell v. Hodges, 576 U.S. 644 (2015). the courts considered same-sex marriages “shocking to good morals.”⁵²See Bowers v. Hardwick, 478 U.S. 186 (1986). Yet, the Mazzolini decision that marriages which are “shocking to good morals” are void is still good case law.

As Justice Kennedy pointed out in his majority opinion in Lawrence v. Texas, the Court’s obligation is “to define the liberty of all, not to mandate [their] own moral code.”⁵³Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 850 (1992); Lawrence v. Texas, 539 U.S. 558, 571 (2003). Moral disapproval of homosexuality has no place in either society or the court system. Justice Scalia, in his dissenting opinion in Lawrence v. Texas, feared that the Court’s holding “effectively decrees the end of all morals legislation.”⁵⁴Lawrence, 505 U.S. at 599 (Scalia, J., dissenting). In other words, Justice Scalia stated that the majority essentially held that all legislation based on morals is invalid.⁵⁵Id. Further, Justice Scalia argued that even if social perceptions of sexual and other morality are changing, the appropriate method of changing the laws to reflect this would be in the legislature, not the creation of a new constitutional right by the Court.⁵⁶Id. at 603 (Scalia, J., dissenting).

As Justice Scalia argued in Lawrence v. Texas, morals are subjective and everchanging.⁵⁷Lawrence, 505 U.S. at 603 (Scalia, J., dissenting). For example, marriage consummated by minors may be considered immoral by some, but it is not illegal in Ohio.⁵⁸Ohio Rev. Code Ann. § 3101.02 (West) (stating the minimum marriage age is 18 for both parties but allows for 17-year-olds to marry if they have juvenile court approval, go through a 14-day waiting period, and the age difference between the two isn’t more than four years). The Mazzolini language permitting marriages that are “shocking to good morals” to be voided is overbroad and provides courts with too much power to strike down marriages and inject their own beliefs into their decisions. Given that even third parties can challenge a marriage as void,⁵⁹See Marriage, Black’s Law Dictionary (11th ed. 2019). there is ample need to strike down the language. Thus, the Supreme Court of Ohio should strike down the offending language. If they fail to do so, the Ohio legislature should enact legislation providing clearer guidelines on the matter.

On the other hand, a world without morality is a frightening consideration. Morals, when defined correctly, allow us to live in peace and harmony in society. However, as this article argues, there is an existing Mazzolini avenue in which the courts are given authority to void a marriage: voiding marriages that are contrary to public policy.⁶⁰Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958).  

B. Public Policy

The court’s ability to void a marriage is not limited to instances where the marriage is “shocking to good morals;” the court may also void a marriage if it is “unalterably opposed to a well-defined public policy.”⁶¹See Mazzolini v. Mazzolini, 155 N.E.2d 206, 207 (Ohio 1958). Broadly, public policy means that courts will occasionally find a marriage invalid because it is against the “public good.” However, prior to the U.S. Supreme Court’s Obergefell decision, “any marriage between persons of the same sex was against the strong public policy of [Ohio]….”⁶²See R.C. 3101.01(C).

In the Ohio Supreme Court’s Dodrill decision, where the officiating person did not possess all of the requisite licenses necessary to solemnize a marriage under Ohio law, the court said the marriage “did not violate the public policy of the State of Ohio.”⁶³Dodrill v. Dodrill, 2004 WL 938476 (2004). The Dodrill court provided three examples where a marriage would be void as against public policy: “(1) if the parties where uncle and niece (incest); (2) if the parties were of the same sex; and (3) if either party had another spouse at the time of the marriage.”⁶⁴Rihan v. Rihan, 2006 WL 1461097, *4 (2006) (citing Dodrill v. Dodrill, 2004 WL 938476 (2004)). Since none of these examples were present in Dodrill, the marriage, while defective, was not rendered void by the court.⁶⁵Id.

Morals seemingly have a great influence on the shaping of public policy. The issue lies in the fact that there is a lack of transparency as to what informs the courts on decisions it makes regarding marriages that are “shocking to good morals” and/or “opposed to public policy.”

If the courts and/or the legislature overrule the “shocking to good morals” language and sustain the “unalterably opposed to a well-defined public policy” language, it will give the courts enough guidance and leeway to make informed decisions but will reduce the likelihood that the courts will inject their own beliefs into their decisions given the “well-defined” language. It can be argued that “well-defined” can be translated to “adopted by the legislature” via statute.⁶⁶See R.C. 3101.01(C) (stating that same-sex marriages were void against public policy).

An important question to ask is who should be making the decision regarding whether a marriage is void or voidable, the legislature or the judiciary. If the legislature is to adopt legislation that overrules the “shocking to good morals” language and sustains the “public policy” language, it will leave the courts without ammunition to insert their own beliefs into their decisions on private marital matters.

The legislature is comprised of individuals who are elected by the people; they are a representation of the people and are held to be more accountable to the public. Thus, any decision will be a product of the people and not a product of the court system. Providing meaningful legislation will also produce more judicial efficiency since courts will have guidelines for handling decisions. Despite several positive considerations toward the legislature outlining the void or voidable marriage guidelines, one negative consideration would be the timeliness of any decision. It could take years before any meaningful legislation is enacted, especially considering the current polarization of the parties. If the decision is left to the courts, the results could potentially be immediate. However, as argued above, to avoid the influence of individual predilections of the judiciary, this is a decision better left for the legislature.

IV. Conclusion

When the Ohio Supreme Court held in Mazzolini that “[t]he policy of the law is to sustain marriages, where they are not … shocking to good morals…,”⁶⁷Mazzolini v. Mazzolini, 155 N.E.2d 206, 207 (Ohio 1958). it left courts with a great deal of uncertainty as to what actions would be considered “shocking to good morals.” At the time Mazzolini was decided, same-sex marriages were considered illegal and “shocking to good morals.”⁶⁸Id. Yet, Mazzolini is still good case law. Thus, it is time for the courts and/or the legislature to overrule the “shocking to good morals” language since it is overbroad and gives the courts too much authority to void marriages. After all, as Justice O’Connor noted in Planned Parenthood v. Casey, “[the courts] obligation is to define the liberty of all, not to mandate [their] own moral code.”⁶⁹Casey, 505 U.S. at 850.