[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Stolz 

v. J & B Steel Erectors, Inc., Slip Opinion No. 2018-Ohio-5088.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2018-OHIO-5088

STOLZ v. J & B STEEL ERECTORS, INC., ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Stolz v. J & B Steel Erectors, Inc., Slip Opinion No. 

2018-Ohio-5088.] 

Workers’ compensation—Immunity from tort claims—Self-insured construction 

projects—R.C. 4123.35(O)—R.C. 4123.35(O)’s grant of immunity to 

subcontractors enrolled in a contractor’s self-insurance plan from claims 

by employees of another enrolled subcontractor does not violate right-toremedy, right-to-jury, or equal-protection provisions of Ohio Constitution. 

(No. 2017-1245—Submitted May 8, 2018—Decided December 20, 2018.) 

ON ORDER from the United States District Court for the Southern District of Ohio, 

Western Division, Certifying a Question of State Law, No. 1:14-cv-44. 

_________________ 

DEWINE, J. 

{¶ 1} Ohio law allows a general contractor on certain large construction 

projects to “self-insure” and provide workers’ compensation coverage for its own 
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2

employees and for the employees of subcontractors that enroll in the contractor’s 

self-insurance program. An employee who is injured on the job may not pursue a 

negligence claim against the general contractor or an enrolled subcontractor but 

must instead seek compensation pursuant to Ohio’s workers’ compensation laws. 

In this case, which comes to us by way of a certified question from the United States 

District Court, we consider whether this scheme violates certain provisions of the 

Ohio Constitution. We conclude that it does not. 

I. Background 

{¶ 2} This is the second time in the same federal lawsuit we have been 

called upon to answer a question about the contractor-self-insurance program. See

Stolz v. J & B Steel Erectors, Inc., 146 Ohio St.3d 281, 2016-Ohio-1567, 55 N.E.3d 

1082, ¶ 3-8 (“Stolz I”). The district-court case arose from a workplace accident that 

occurred during construction of the Horseshoe Casino in Cincinnati. Daniel Stolz 

was injured when a floor upon which he was working collapsed, causing him to fall 

some 25 feet. Stolz was employed as a concrete finisher for Jostin Construction, 

Inc. (“Jostin”). And Jostin was a subcontractor of Messer Construction Company 

(“Messer”), the general contractor for the project. 

{¶ 3} Prior to the start of construction, Messer received permission from the 

Ohio Bureau of Workers’ Compensation to act as the self-insuring employer on the 

project under R.C. 4123.35(O). Under the statute, Messer provided workers’ 

compensation coverage on the project for its own employees as well as the 

employees of subcontractors like Jostin that chose to enroll in Messer’s selfinsurance plan (“enrolled subcontractors”). 

{¶ 4} After he was injured, Stolz sued Messer and several of the 

subcontractors for negligence. Messer and three of the enrolled subcontractors 

moved for summary judgment on the grounds that they are immune from liability 

under R.C. 4123.35(O)’s provisions concerning contractor self-insurance. 
January Term, 2018 

3

{¶ 5} The district court granted summary judgment to Messer, as the 

general contractor, but refused to extend immunity to the subcontractors. 

Following summary judgment, we accepted our first certified question of state law 

from the federal court. That question asked whether R.C. 4123.35 and 4123.74 

provide immunity to enrolled subcontractors from tort claims brought by 

employees of other enrolled subcontractors. Stolz I, 146 Ohio St.3d 281, 2016-

Ohio-1567, 55 N.E.3d 1082, at ¶ 8. We answered the question in the affirmative, 

concluding that the statutes “create a legal fiction that a self-insuring employer for 

a self-insured construction project is the single employer, for workers’ 

compensation purposes, of all employees working for enrolled subcontractors on 

that project.” Id. at ¶ 27. 

{¶ 6} Back before the district court, Stolz amended his complaint to allege 

that R.C. 4123.35(O) violates various provisions of the United States and Ohio 

Constitutions. Once more, the enrolled subcontractors petitioned the district court 

to certify a question of state law to this court. Again, we accepted. The question 

is: 

“Whether Ohio [R.C.] 4123.35(O) is unconstitutional as applied to 

the tort claims of an enrolled subcontractor’s employee who is 

injured while working on a self-insured construction project and 

whose injury is compensable under Ohio’s workers’ compensation 

laws.” 

 (Brackets sic.) 151 Ohio St.3d 1451, 2017-Ohio-8842, 87 N.E.3d 220, quoting the 

district court’s certification order.

II. Ohio’s Workers’ Compensation System and R.C. 4123.35(O) 

{¶ 7} The Ohio Constitution authorizes the legislature to establish a state 

fund for the purpose of “providing compensation to workmen and their dependents, 
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4

for death, injuries or occupational disease, occasioned in the course of such 

workmen’s employment” and to require “compulsory contribution thereto” from 

employers. Ohio Constitution, Article II, Section 35. An employer that “pays the 

premium or compensation provided by law * * * shall not be liable to respond in 

damages at common law or by statute for such death, injuries or occupational 

disease.” Id. 

{¶ 8} The legislature established the Ohio workers’ compensation system 

under this authority. See R.C. Chapter 4123. Most employers participate in the 

system by paying premiums into a state insurance fund that administers and pays 

out claims. R.C. 4123.35(A). The scheme also allows certain employers who 

possess “sufficient financial and administrative ability” to self-insure their workers’ 

compensation obligations. R.C. 4123.35(B). These “self-insuring employer[s]” 

have the same immunity from liability as other employers but pay claims directly 

to injured employees and the dependents of deceased employees. Id. 

{¶ 9} R.C. 4123.35(O) takes the self-insurance principle a step further. It 

allows the administrator of the workers’ compensation system to grant a selfinsuring employer the privilege of self-insuring certain large construction projects. 

The self-insuring employer may administer workers’ compensation claims not only 

for its own employees but also for the employees of subcontractors enrolled in the 

plan. R.C. 4123.35(O). In return, the self-insuring employer gains protection 

against claims by its own employees as well as the claims of employees of enrolled 

subcontractors. Id. And as we explained in Stolz I, an enrolled subcontractor also 

receives protection against claims by employees of another enrolled subcontractor. 

146 Ohio St.3d 281, 2016-Ohio-1567, 55 N.E.3d 1082, at ¶ 27. The question now 

before us is whether this grant of immunity to enrolled subcontractors violates 

certain provisions of the Ohio Constitution.

 
January Term, 2018 

5

III. Stolz’s Constitutional Claims 

{¶ 10} In his amended complaint, Stolz alleged that R.C. 4123.35(O) 

violates various provisions of the state and federal Constitutions. The question 

certified by the district court does not distinguish between Stolz’s federal and state 

claims. We answer certified questions of “Ohio law,” S.Ct.Prac.R. 9.01(A), and 

thus we will limit our analysis to Stolz’s claims under the Ohio Constitution. 

{¶ 11} Stolz alleged violations of seven provisions of the Ohio Constitution. 

But in his briefing before this court, Stolz argues only that R.C. 4123.35(O) violates 

the due-process and equal-protection guarantees of the Ohio Constitution. Within 

these arguments, he contends that R.C. 4123.35(O) infringes upon fundamental 

rights protected by the right-to-jury and right-to-remedy provisions of the Ohio 

Constitution. Because he has not raised any arguments concerning the other 

provisions of the Ohio Constitution referred to in his amended complaint, we deem 

such claims to be abandoned. See Household Fin. Corp. v. Porterfield, 24 Ohio 

St.2d 39, 46, 263 N.E.2d 243 (1970). As to the constitutional claims that Stolz does 

raise, we conclude that neither has merit. 

A. Due Course of Law 

{¶ 12} Stolz first argues that R.C. 4123.35(O)’s grant of immunity to 

enrolled subcontractors violates his rights to due process under Article I, Section 

16 of the Ohio Constitution. That section provides, “All courts shall be open, and 

every person, for an injury done him in his land, goods, person, or reputation, shall 

have remedy by due course of law, and shall have justice administered without 

denial or delay.” Under a plain reading, the constitutional provision does not speak 

to “due process” at all but, rather, to an individual’s right to access the court system 

and to seek a remedy. For many years, however, we have treated the provision as 

equivalent to the Due Process Clause of the Fourteenth Amendment to the United 

States Constitution. See Wilson v. Zanesville, 130 Ohio St. 286, 289-290, 199 N.E. 

187 (1935), overruled in part on other grounds, Cincinnati v. Correll, 141 Ohio St. 
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6

535, 49 N.E.2d 412 (1943); Adler v. Whitbeck, 44 Ohio St. 539, 568-569, 9 N.E. 

672 (1887). No party has asked us to do otherwise today. 

{¶ 13} Stolz primarily argues that R.C. 4123.35(O) violates his rights to 

substantive due process. While the Due Process Clause of the Fourteenth 

Amendment on its face would seem to be concerned with only the adequacy of 

procedures employed when one is deprived of life, liberty, or property, the United 

States Supreme Court has read it to include a substantive component that forbids 

some government actions “regardless of the fairness of the procedures used to 

implement them,” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 

L.Ed.2d 662 (1986). We have also recognized substantive-due-process protections 

under the Ohio Constitution. See Arbino v. Johnson & Johnson, 116 Ohio St.3d 

468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 48-49. 

{¶ 14} In a substantive-due-process challenge, “[t]he first (and often last) 

issue * * * is the proper characterization of the individual’s asserted right.” Blau 

v. Fort Thomas Pub. School Dist., 401 F.3d 381, 393 (6th Cir.2005), citing Reno v. 

Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Government 

actions that infringe upon a fundamental right are subject to strict scrutiny, while 

those that do not need only be rationally related to a legitimate government interest. 

State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 18. 

{¶ 15} Stolz contends that R.C. 4123.35(O) violates two fundamental rights 

guaranteed by the Ohio Constitution: the right to a jury trial and the right to a 

remedy. We may quickly dispose of the argument that R.C. 4123.35(O) infringes 

upon Stolz’s right to a jury trial. The jury-trial guarantee extends to those civil 

cases in which the right existed at the time of the adoption of the Ohio Constitution. 

Belding v. State ex rel. Heifner, 121 Ohio St. 393, 169 N.E. 301 (1929), paragraph 

one of the syllabus; Arrington v. DaimlerChrysler Corp., 109 Ohio St.3d 539, 2006-

Ohio-3257, 849 N.E.2d 1004, ¶ 22. The jury-trial guarantee does not, however, 

prohibit the legislature from altering a common-law cause of action. Stetter v. R.J. 
January Term, 2018 

7

Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 

N.E.2d 1092, ¶ 64. Rather, the legislature may “ ‘alter, revise, modify, or abolish 

the common law as it may determine necessary or advisable for the common 

good.’ ” Id., quoting Arbino at ¶ 131 (Cupp, J., concurring). 

{¶ 16} In Arrington, we held that the constitutional right to a jury trial does 

not extend to a worker seeking to participate in the workers’ compensation fund. 

Arrington at ¶ 26-27. We explained that “the statutory workers’ compensation 

scheme was intended as a replacement for the void of common-law remedies for 

workers injured on the job.” Id. at ¶ 24. Because the act “ ‘abolishes all right of 

recovery in ordinary cases,’ ” it “ ‘leaves nothing to be tried by jury.’ ” Id., quoting

Mountain Timber Co. v. Washington, 243 U.S. 219, 235, 37 S.Ct. 260, 61 L.Ed.2d 

685 (1917). In enacting R.C. 4123.35(O), the General Assembly exercised its 

constitutional authority to abolish an employee’s right to recover in tort from an 

enrolled subcontractor and replaced it with a right to recover through the workers’ 

compensation laws. Thus, like the employee in Arrington, Stolz has no 

constitutional right to a jury trial for his workplace-injury claim. 

{¶ 17} We also reject Stolz’s argument that R.C. 4123.35(O) infringes upon 

his right under Article I, Section 16 to a “remedy by due course of law.” We have 

held that “the right-to-remedy provision applies only to existing, vested rights and 

that the legislature determines what injuries are recognized and what remedies are 

available.” Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 

291, ¶ 13. To violate the guarantee, a statute must be a “serious infringement of a 

clearly preexisting right to bring suit.” Fabrey v. McDonald Village Police Dept., 

70 Ohio St.3d 351, 355, 639 N.E.2d 31 (1994). 

{¶ 18} In Stetter, we considered an intentional-tort statute that limited an 

employee’s ability to recover in tort from his employer to situations in which the 

employee could show that the employer acted with a deliberate intent to injure; 

claimants who could not meet this standard could receive compensation only 
SUPREME COURT OF OHIO

8

through the workers’ compensation system. 125 Ohio St.3d 280, 2010-Ohio-1029, 

927 N.E.2d 1092, at ¶ 44, 60. Under the prior version of the statute, an employee 

could recover for an intentional tort by showing that an injury was substantially 

certain to result from the employer’s conduct. Id. at ¶ 27. We concluded that even 

though the new statute removed a tort remedy that had previously existed, it did not 

violate the right-to-remedy provision. Id. at ¶ 60. We explained that the workers’ 

compensation system provided meaningful remedies for employees who had been 

injured by an intentional tort as defined by the statute. Id. Further, we held that in 

enacting the statute in question, the General Assembly acted pursuant to its power 

to modify common-law causes of action. Id. Similar considerations apply here: in 

enacting R.C. 4123.35(O), the legislature exercised its authority to modify an 

employee’s cause of action against enrolled subcontractors, and Stolz and injured 

workers like him may obtain an adequate remedy through the workers’ 

compensation system. 

{¶ 19} Thus, we reject Stolz’s claim that R.C. 4123.35(O) violates the jurytrial and right-to-remedy guarantees of the Ohio Constitution. Because Stolz has 

not shown that the statute infringes upon a fundamental right, we apply rationalbasis review to his claim. Under rational-basis review, we will uphold the statute 

as long as it is rationally related to a legitimate government interest. Arbino, 116 

Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 66. We grant “substantial 

deference” to the General Assembly’s predictive judgment in making that 

determination. State v. Williams, 88 Ohio St.3d 513, 531, 728 N.E.2d 342 (2000). 

{¶ 20} Ohio’s workers’ compensation system is the “result of a unique 

compromise between employees and employers, in which employees give up their 

common-law remedy and accept possibly lower monetary recovery, but with 

greater assurance that they will receive reasonable compensation for their injury.” 

Stetter at ¶ 54. In recognition of this compromise, we have upheld various aspects 

of the workers’ compensation system in the face of due-process challenges. In 
January Term, 2018 

9

Kaiser v. Strall, 5 Ohio St.3d 91, 93-94, 449 N.E.2d 1 (1983), we held that a 

workers’ compensation statute that bars an injured worker from pursuing a tort 

claim against a fellow employee does not violate the injured worker’s due-process 

rights. We found the contention that the scheme was unconstitutional to be 

“particularly mystifying, given the fact that its very adoption would abrogate” the 

provision of the Ohio Constitution authorizing the creation of the workers’ 

compensation fund. Id. at 93, citing Ohio Constitution, Article II, Section 35. 

{¶ 21} Similarly, in Stetter, we looked to the underlying purposes of the 

workers’ compensation system in upholding a statutory restriction on an 

employee’s ability to sue his employer for an intentional tort. 125 Ohio St.3d 280, 

2010-Ohio-1029, 927 N.E.2d 1092, at ¶ 74-76. We explained that one primary 

rationale undergirding the statutory compromise was to “ ‘minimize litigation, even 

litigation of undoubted merit.’ ” Id. at ¶ 74, quoting 6 Larson, Workers’ 

Compensation Law, Section 103.03 (2008). 

{¶ 22} R.C. 4123.35(O) furthers the purposes of the workers’ compensation 

system by putting a project with a general contractor and multiple subcontractors 

on the same footing as a large construction project undertaken by a single 

contractor. By extending immunity to enrolled subcontractors, R.C. 4123.35(O) 

encourages subcontractors to engage in large-scale construction projects they might 

otherwise shy away from because of concerns about accident-related litigation. In 

addition, it provides a quicker, and more certain, means of recourse for injured 

employees. Thus, we have little difficulty concluding that the legislature acted with 

a rational basis in enacting R.C. 4123.35(O). We therefore reject Stolz’s 

substantive-due-process challenge. 

{¶ 23} Stolz also presents what he characterizes as a procedural-dueprocess claim. He says that employees “were not reasonably put on notice by the 

language of the statute that they would be deprived of their rights to a jury trial and 

remedy as to non-employer, third-party contractors.” In essence, his argument is 
SUPREME COURT OF OHIO

10 

that his procedural-due-process rights were violated because he could not have 

anticipated our decision in Stolz I interpreting R.C. 4123.35(O) as barring an 

employee’s claim against an enrolled subcontractor. 

{¶ 24} A procedural-due-process claim challenges the adequacy of the 

procedures employed when the government deprives a person of life, liberty, or 

property. Ferguson v. State, 151 Ohio St.3d 265, 2017-Ohio-7844, 87 N.E.3d 1250, 

¶ 42. Here, Stolz is not challenging the procedural adequacy of a governmental 

action but, rather, expressing a substantive disagreement with this court’s 

construction of the statute. Because his challenge is not to the adequacy of 

procedures employed by the government in depriving him of life, liberty, or 

property, he does not assert a procedural-due-process violation. 

B. Equal Protection

{¶ 25} Article I, Section 2 of the Ohio Constitution provides: “All political 

power is inherent in the people. Government is instituted for their equal protection 

and benefit * * *.” Stolz claims that his equal-protection rights are infringed upon 

because he is treated differently than a worker who is “on a traditional, state-funded 

project that does not take advantage of R.C. 4123.35’s self-insured provision.” 

{¶ 26} Our analysis of Stolz’s substantive-due-process claim gives away 

the ending as to his equal-protection claim. When—as here—a statute does not 

infringe upon a fundamental right or involve a suspect classification, it will be 

upheld as long as it is rationally related to a legitimate government interest. 

Ferguson at ¶ 31. As we explained in the due-process section of our analysis, the 

classification rationally advances a legitimate government interest by extending the 

limitations on damages provided for in the workers’ compensation system to 

enrolled subcontractors in large construction projects. In addition, it advances the 

government’s interest in allowing injured workers a certain, and prompt, 

mechanism for the payment of benefits. Because R.C. 4123.35(O) satisfies 
January Term, 2018 

11 

rational-basis review, it does not violate the Equal Protection Clause of the Ohio 

Constitution. 

IV. Conclusion 

{¶ 27} The United States District Court for the Southern District of Ohio 

asked a question of state law as to whether R.C. 4123.35(O) is “unconstitutional as 

applied to the tort claims of an enrolled subcontractor’s employee who is injured 

while working on a self-insured construction project and whose injury is 

compensable under Ohio’s workers’ compensation laws.” We answer the question 

in the negative: the provision does not violate the Ohio Constitution’s right-toremedy, right-to-jury, or equal-protection provisions. 

So answered. 

KENNEDY, FRENCH, and DEGENARO, JJ., concur. 

FISCHER, J., concurs, with an opinion. 

O’CONNOR, C.J., and O’DONNELL, J., concur in judgment only. 

_________________ 

FISCHER, J., concurring. 

{¶ 28} I fully and respectfully concur in the majority opinion and its 

resolution of the arguments presented by the parties. I write separately, however, 

to emphasize that the unique language and historical background of this state’s 

Equal Protection Clause, Article I, Section 2 of the Ohio Constitution, should be 

carefully analyzed. In a future case, this court should reexamine our precedent 

holding that the Ohio Equal Protection Clause is actually the “functional 

equivalent” of the Equal Protection Clause of the Fourteenth Amendment to the 

United States Constitution. 

{¶ 29} Because the parties in this case did not challenge this court’s 

traditional understanding of the two clauses as functionally equivalent, the majority 

properly follows that precedent. Today’s decision should not, however, be taken 

to mean that the precedent is unchallengeable. 
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12 

I. Introduction 

{¶ 30} This court has previously held that the state courts may recognize 

protections under the Ohio Constitution that are greater than those provided by the 

United States Constitution. Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 

(1993), paragraph one of the syllabus. In Arnold, the court conducted an historical 

analysis, concluding that when adopting Article I, Section 4 of the Ohio 

Constitution, the people of Ohio “chose to go even further” than the Second 

Amendment to the United States Constitution regarding the right of an individual 

to possess firearms. Id. at 43. Thus, it is not a forgone conclusion that a clause in 

the Ohio Constitution is the “functional equivalent” of a clause in the federal 

Constitution that addresses a similar issue. 

II. The History of the Ohio and United States Equal Protection Clauses 

{¶ 31} The Equal Protection Clause of the Ohio Constitution was adopted 

as part of the 1851 Ohio Constitution, whereas the Fourteenth Amendment to the 

United States Constitution was not ratified until 1868. Therefore, there can be no 

legitimate argument that the Ohio Equal Protection Clause was the “functional 

equivalent” of the federal Equal Protection Clause for the first 17 years that the 

Ohio clause existed—there was no federal clause to which it could be equivalent, 

functional or otherwise. 

A. The Ohio Equal Protection Clause 

{¶ 32} The Ohio Equal Protection Clause is similar in some ways to the 

Equal Protection Clauses found in the 1776 Virginia Declaration of Rights and the 

1776 Pennsylvania Constitution. The Ohio Equal Protection Clause provides, “All 

political power is inherent in the people. Government is instituted for their equal 

protection and benefit, and they have the right to alter, reform, or abolish the same 

* * *.” Article I, Section 2, Ohio Constitution. Both the 1776 Virginia and 1776 

Pennsylvania clauses provided that “government is, or ought to be, instituted for 

the common benefit, protection, and security of the people, nation, or community.” 
January Term, 2018 

13 

Virginia Declaration of Rights of 1776, Section 3; Pennsylvania Constitution of 

1776, Article V. One obvious difference is that neither the Virginia nor the 

Pennsylvania version actually included the word “equal.” Another difference is the 

inclusion of the language “or ought to be” in both the former Virginia and 

Pennsylvania Equal Protection Clauses but not in the Ohio Equal Protection Clause. 

The phrase “or ought to be” that was contained in the Virginia and Pennsylvania 

versions has been taken to mean that those clauses were more descriptive of a 

political philosophy than clauses, like the Ohio Equal Protection Clause, that 

specifically confer rights. Steven H. Steinglass & Gino J. Scarselli, The Ohio State 

Constitution 85 (2011). 

{¶ 33} Idaho Constitution, Article I, Section 2 contains the same language 

as the Ohio Equal Protection Clause, and South Dakota Constitution, Article VI, 

Section 26 contains similar language. Both the Idaho and South Dakota versions, 

however, were ratified in 1889, 21 years after the federal clause was ratified. 

Kansas’s equal-protection clause, Kansas Bill of Rights, Section 2, was ratified in 

1859, 9 years before the federal clause was ratified. The Kansas version contains 

language similar to the Ohio Equal Protection Clause, but the Ohio and Kansas 

clauses are too distinct to be incontrovertibly viewed as equivalent. And even if 

the two clauses were identical, they should not be viewed as equivalent without 

significant background and historical analysis that supports that view. No other 

state court’s interpretation of its own equal-protection clause is binding on this 

court, and because each state version has a different historical background, 

interpretations provided by state courts analyzing their own equal-protection 

clauses are of limited, if any, persuasive value to an Ohio court interpreting the 

Ohio Equal Protection Clause. 

{¶ 34} Moreover, this court did not cite the Ohio Equal Protection Clause 

in any published decision until 1895, well after the passage of the federal Equal 

Protection Clause. See State ex rel. Schwartz v. Ferris, 53 Ohio St. 314, 341, 41 
SUPREME COURT OF OHIO

14 

N.E. 579 (1895). Thus, this court has not conducted a full analysis of the Ohio 

Equal Protection Clause that was not influenced by federal Equal Protection Clause 

jurisprudence, despite the fact that the Ohio clause is 17 years older than the federal 

clause. 

B. The United States Equal Protection Clause 

{¶ 35} The federal Equal Protection Clause provides that “[n]o state shall 

* * * deny to any person within its jurisdiction the equal protection of the laws.” 

The Fourteenth Amendment, including its Equal Protection Clause, was drafted 

primarily by Congressman John Bingham of Ohio. Richard L. Aynes, The 

Continuing Importance of Congressman John A. Bingham and the Fourteenth 

Amendment, 36 Akron L.Rev. 589, 590 (2003). It was ratified in 1868. 

{¶ 36} The Ohio and federal Equal Protection Clauses were drafted 

relatively closely to each other in time, so it is reasonable to assume that 

Congressman Bingham was familiar with the language in the Ohio clause. Yet each 

clause’s language is significantly different from the language of the other. 

Therefore, either a plain-meaning or an intentionalist interpretation of the Ohio 

Equal Protection Clause could well lead to the determination that the Ohio clause 

is too distinct from the federal clause for them to be considered “functional 

equivalents.” See Paul Brest, The Misconceived Quest for the Original 

Understanding, 60 B.U. L.Rev. 204 (1980) and fn. 5, quoting Home Bldg. & Loan 

Assn. v. Blaisdell, 290 U.S. 398, 453, 54 S.Ct. 231, 78 L.Ed. 413 (1934) 

(Sutherland, J., dissenting) (“For the strict intentionalist, ‘the whole aim of 

construction, as applied to a provision of the Constitution, is * * * to ascertain and 

give effect to the intent of its framers and the people who adopted it’ ” [ellipsis 

sic]). 

C. Ohio Supreme Court Cases Analyzing the Ohio Equal Protection Clause 

{¶ 37} Traditionally, this court has treated the Ohio Equal Protection Clause 

and the federal Equal Protection Clause as “functionally equivalent.” See Schwartz, 
January Term, 2018 

15 

53 Ohio St. at 341, 41 N.E. 579 (“it is sufficient to say that the provisions of this 

section of the federal constitution, as to this question, are not broader than the 

second section of our bill of rights”); Am. Assn. of Univ. Professors, Cent. State 

Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60, 717 N.E.2d 286 (1999) 

(“the federal and Ohio Equal Protection Clauses are to be construed and analyzed 

identically”); State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, 

¶ 29 (the federal and Ohio Equal Protection Clauses are “functionally equivalent 

and require the same analysis”). 

{¶ 38} Nonetheless, that precedent has been questioned in at least two 

recent decisions. See State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75 

N.E.3d 141, ¶ 11 (“the Equal Protection Clause of the Ohio Constitution is 

coextensive with, or stronger than, that of the federal Constitution” [emphasis 

added]); State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368. In 

Mole, Chief Justice O’Connor authored the lead opinion, which was joined by two 

other justices, and another justice concurred in judgment only. The chief justice 

made clear that the Ohio Constitution is a document of force independent from the 

United States Constitution, id. at ¶ 14, and that there are situations in which “the 

guarantees of equal protection in the Ohio Constitution independently forbid * * * 

disparate treatment” even if the federal Equal Protection Clause does not forbid that 

treatment, id. at ¶ 23. Justice French, in a dissenting opinion in Mole that was joined 

by Justice O’Donnell, stated that the Ohio Equal Protection Clause may in theory 

provide greater protections than those provided by the federal clause but that 

holding as much requires “an independent analysis of the equal-protection 

guarantee in Article I, Section 2 of the Ohio Constitution premised on its language, 

history or early understandings.” Id. at ¶ 117 (French, J., dissenting). 

{¶ 39} Thus, this court’s jurisprudence on the Ohio Equal Protection Clause 

has not been uniform. Given the recent divergence from our traditional 

understanding of the clause, it is not unreasonable to suggest that this court should, 
SUPREME COURT OF OHIO

16 

with the benefit of full briefing, thoroughly reexamine the Ohio and federal Equal 

Protection Clauses and determine whether they are indeed functional equivalents. 

III. Testing Functional Equivalence 

{¶ 40} One major problem with the functional-equivalence approach is that 

United States Supreme Court precedent regarding some amendments to the United 

States Constitution, including the Fourteenth Amendment and its Equal Protection 

Clause, is far from static. In the 1960s, the court applied a rational-basis test unless 

the statute at issue “classified on the basis of race” or “provided for unequal 

distribution of fundamental rights.” William D. Araiza, The Section 5 Power and 

the Rational Basis Standard of Equal Protection, 79 Tul. L.Rev. 519, 521-522 

(2005). By the end of the 1970s, the court had started applying differing levels of 

scrutiny that were “higher” than the rational-basis test to cases involving gender, 

illegitimacy, and alienage. Id. at 522. By the mid-1990s, the court was applying 

in equal-protection gender cases a standard of review similar to that which it was 

applying in equal-protection race cases. Id. 

{¶ 41} As noted above, this court first recognized the Ohio Equal Protection 

Clause as the functional equivalent of the federal Equal Protection Clause in 1895. 

See Schwartz, 53 Ohio St. at 341, 41 N.E. 579. Plainly, the United States Supreme 

Court’s interpretation of the federal Equal Protection Clause has changed 

significantly during the 120-plus years that have passed since this court’s first 

recognition of functional equivalence. With this in mind, it is arguable that the 

Ohio Equal Protection Clause should be interpreted as providing the protections 

that the United States Supreme Court had recognized under the federal Equal 

Protection Clause until 1895. Moreover, in the future, the United States Supreme 

Court may continue to add or subtract from the protections it interprets the federal 

Equal Protection Clause as providing. 

{¶ 42} By treating the two clauses as functionally equivalent, this court 

delegates its final authority to interpret the Ohio clause to the United States 
January Term, 2018 

17 

Supreme Court, which that court exercises whenever it substantially alters its 

interpretation of the federal clause. This “upward delegation” of the duty to 

interpret the Ohio Constitution is improper under our federal system and 

unconstitutional under the Ohio Constitution. See Article IV, Section 1, Ohio 

Constitution. Thus, a strong argument can be made that this court cannot blindly 

accept the current, or any new, federal interpretation but instead must independently 

determine when interpreting the Ohio Equal Protection Clause whether to follow 

the United States Supreme Court’s interpretation of the federal Equal Protection 

Clause. 

{¶ 43} Because this court’s recent caselaw on the Ohio Equal Protection 

Clause is not uniform, because the Ohio clause has language and a historical 

background that are substantially different from those of the federal Equal 

Protection Clause, and because the United States Supreme Court’s jurisprudence 

on the federal clause has repeatedly shifted since this court first made the 

“functional equivalence” determination, a future challenge to this court’s equalprotection functional-equivalence precedent should be carefully analyzed and 

resolved with thorough reasoning. 

IV. Conclusion 

{¶ 44} Again, the parties in this case did not challenge this court’s 

traditional understanding that the Ohio Equal Protection Clause is the functional 

equivalent of the federal Equal Protection Clause. As is proper, the majority 

opinion does not conduct an analysis of unraised arguments. I take no position on 

whether the arguments proposed above, or any other arguments challenging this 

court’s functional-equivalence holdings, would lead me to conclude that the Ohio 

Equal Protection Clause is anything other than the functional equivalent of the 

federal Equal Protection Clause as currently interpreted by the United States 

Supreme Court. Nonetheless, if such arguments were properly briefed and 

submitted to this court, I believe that the court would need to conduct “an 
SUPREME COURT OF OHIO

18 

independent analysis of the equal-protection guarantee in Article I, Section 2 of the 

Ohio Constitution premised on its language, history or early understandings,” Mole, 

149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, at ¶ 117 (French J. 

dissenting). 

_________________ 

Kohnen & Patton, L.L.P., Colleen M. Blandford, and Jordan T. Steiner, for 

petitioner J & B Steel Erectors, Inc. 

 Patsfall, Yeager & Pflum, L.L.C., Susan M. Salyer, Stephen M. Yeager, and 

Stephen J. Patsfall, for petitioners TriVersity Construction Co., L.L.C., and D.A.G. 

Construction Co., Inc. 

 Beckman Weil Shepardson, L.L.C., Stephanie M. Day, and Kristen M. 

Myers; and Goodson & Company and Brett C. Goodson, for respondent Daniel 

Stolz. 

 Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and 

Michael J. Hendershot, Chief Deputy Solicitor, in support of petitioners for amicus 

curiae State of Ohio. 

 Green & Green Lawyers, L.P.A., Jane M. Lynch, and Jared A. Wagner, in 

support of petitioners for amicus curiae Messer Construction Company. 

_________________