Update: on October 5, 2016, the state’s motion for reconsideration was denied by a vote of 4-3. The same justices who dissented from the merit decision–Kennedy, French, and O’Donnell–would have granted reconsideration.
On July 28, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Mole, Slip Opinion No. 2016-Ohio-5124. In a 4-3 opinion, the court struck down R.C. 2907.03(A)(13) on its face, on equal protection grounds. The statute, a subsection of the sexual battery law, prohibits sexual conduct when one person is a minor and the offender is a peace officer and more than two years older than the minor. Critical to striking down the statute was the majority’s finding that Article I, Section 2, the Ohio Constitution’s Equal Protection Clause, provides greater protection than the federal Equal Protection Clause does. Read the complete analysis of the merit decision here.
Motion for Reconsideration
On August 8, 2016, the state filed for reconsideration in the case. Motions for reconsideration are common, and are usually denied. But this one cried foul over the court’s making its decision on the basis of an argument the state claims neither side briefed or argued. The state asked the court either to reconsider its holding that Article 1, Section 2 provides greater protections than those afforded under the 14th Amendment, or to at least let the parties and interested amici brief the issue. The state points out that in his brief, Mole argued that the federal and Ohio equal protection provisions are functionally equivalent and should be construed and analyzed identically. The state also notes, as did the blog, that the court of appeals considered the provisions equivalent in its ruling.
While agreeing that the Ohio Constitution is a document of independent force (that really is a settled point of law) the state argues, as did the blog, that that fact alone doesn’t establish greater protection than exists under the analogous federal provision. Textual and historical analysis is needed. The state supplied some, which suggests that there is no evidence to support the claim of greater protection under the state constitution. Read the state’s entire motion for reconsideration here.
The state may get the votes of the three dissenters to grant reconsideration. But considering the fact that this case was pending for over two years without a decision, a fourth vote seems unlikely.