According to today’s Cleveland Plain Dealer, the Ohio Supreme Court issued a ruling last month that may have exposed a loop hole in Ohio’s gay marriage ban that actually allows gay and lesbian couples to have most of the same rights as married heterosexual couples.

The court case that resulted in the positive ruling had nothing to do with gays and lesbians. The case had to do with whether the marriage amendment nullified the legal protections unmarried victims of domestic abuse currently receive. The court’s ruling: no, it doesn’t. But they said a lot more than that.

Ohio’s gay marriage ban is only two sentences long: “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.” The first sentence bans gays from marriage and the second sentence is intended to ban civil unions. But according to Ohio’s Supreme Court, that’s not what the second sentence actually does.

The second sentence bars the state from creating an institution that grants all of the rights of marriage to anyone other than a man and a woman. The key word is ALL. If you create a legal entity similar to marriage that excludes just one right that married couples receive, then it’s not approximating marriage, because it’s not equal. And the law doesn’t prohibit the state from doing this.

The following passage from the Plain Dealer summarizes the court’s ruling (emphasis added):

The marriage amendment’s second sentence (the part that the domestic violence law was said to violate) gets different treatment. The court expressly looks beyond the text for its meaning.

The sentence reads: “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.” According to the court, this doesn’t mean the state is barred from creating or recognizing any nonmarital, intimate relationship with the look, feel or smell of marriage. No matter that that’s the most straightforward interpretation of the text and the one Justice Judith Lanzinger “reluctantly and regretfully” adopts in her lone dissent.

What, then, does this provision mean? Carswell ventures: It “means that the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage - a marriage substitute.” The court’s only stated example: civil unions. That’s what the second sentence of the amendment bans.

So, the marriage amendment, as interpreted by the Supreme Court, now looks like this: The state may not define marriage except as it has traditionally been defined - one man, one woman, as husband and wife. Nor may it “create or recognize” a “marriage substitute” “that bears all of the attributes of marriage.”

The domestic violence law, on this view, is constitutionally acceptable. It doesn’t grant “all of the attributes of marriage.” Not even some. Only one.

Here’s the boon for lesbians and gay men. Leave aside the view taken for granted elsewhere, that “civil unions” aren’t the equivalent of marriage under law or in social life. Carswell, insisting they are, indicates that everything short of a civil union is now, legally, fair game. Domestic partnership programs offering health care and other limited benefits to state (including university) employees? Fine. They don’t, after all, bear “all of the attributes of marriage.” Doubt it? Ask any bride on any altar if she’d be satisfied with these instead of marriage vows.

Same-sex adoptions? Co-parenting agreements? Fine, fine and for the same reason. Health care proxies and hospital visitation rules? Estate and other inheritance rules recognizing surviving same-sex partners? Testimonial privileges for those in long-term, same-sex relationships? Palimony, if and when they end? (Guess what: They sometimes do.) Any cloud of constitutional doubt hovering over any of these - and other - legal rights the marriage amendment blew in, Carswell has blown back out.

Progress must be incremental - step by step, law by law, legal right by legal right. But so long as the state stops short of a single, comprehensive package that “creates or recognizes a legal status for unmarried persons that bears all of the attributes of marriage - a marriage substitute,” its recognition of same-sex relationships has the court’s constitutional blessing.

It’s unfair this day in age that gays and lesbians aren’t given the same rights as heterosexuals and even under this new interpretation can’t receive all the rights of marriage, but things are looking a lot brighter than they did in Ohio a few years ago. Even gaining one right, no matter how small, is progress.

So the question I pose to all of you: If Ohio created an institution similar to marriage but had to exclude one right given to married couples in order to get around the gay marriage ban, what one right would you exclude?