One Toledo law professor is helping drive two of this year’s most controversial proposals in Ohio

By: and - June 14, 2023 5:00 am

Professor Lee Strang is the John W. Stoepler Professor of Law & Values at the University of Toledo Law School. (Photo from University of Toledo website.)

Since introducing a plan last year to make it harder to amend the Ohio Constitution, supporters have insisted their proposal was an issue-neutral effort to protect the state’s founding document.

But advocates for a new 60% threshold for constitutional amendments have repeatedly hewed toward a variety of very specific issues: Firearms groups worried about future gun regulations and business and restaurant groups worried about a minimum wage increase, but the loudest in the chorus were organizations fretting about a proposed abortion rights amendment.

The 60% proposal’s House sponsor pointed to abortion rights and anti-gerrymandering efforts. Senate President Matt Huffman drew an explicit link between an August election and undermining an abortion amendment. Ohio Secretary of State Frank LaRose recently said the issue is, “100% about keeping a radical pro-abortion amendment out of our constitution.”

There was one person, however — and really just one — who made a case in testimony in the terms that sponsors publicly asserted. One person who presented a kind of legal and philosophical framework for their good governance arguments — University of Toledo law professor Lee Strang.

Strang is not just an expert in originalist constitutional theory, he’s also deeply embedded in the pro-life movement.

University of Toledo Law Professor Lee Strang testifying before state Senators in March. (Screenshot from The Ohio Channel.)

Strang and the 60% threshold

The first bid at imposing a 60% threshold for constitutional amendments last winter was notable for its lack of public support. For weeks sponsors claimed the change would keep out-of-state special interests from hijacking the constitution.

The only group to show up offering testimony in support was an out-of-state special interest.

So, the second time around this spring, Strang was a bit of a godsend. Here was a distinguished legal scholar laying out a coherent explanation of the sponsors’ aims and arguments for passage.

“Our constitution is nearly 175 years old in a world where constitutions typically lasts less than 20 years. This is a real credit to the people of Ohio,” Strang told a House committee in April. “The constitution will be better able to serve its mission of being our stable, fundamental law for the next 175 years, when amendments receive support from over 60% of Ohioans.”

Strang was encyclopedic and persistent but unfailingly polite. He was even-handed and acknowledged the limits of his arguments. He readily admitted, for instance, that the process for citizens to initiate statutes should be changed. While he contended a bare majority opens the door to outside groups, he also questioned, “How far north of 50% do you have to go? I think reasonable people can disagree about that.”

“My tentative view would be that 55 (%) is the minimum, and I think 65 (%) is probably pushing it,” he explained to a Senate committee in March. “So somewhere between 55 (%) and 65 (%) would be the sweet spot.”

What’s more, Strang veered away from the spurious testimony anti-abortion groups offered. Pressed on the connection between the supermajority proposal and abortion, he argued, “Other people may have other reasons for it; I don’t attribute those other reasons.”

Later he added, “(A person) could actually take that point and turn it around, right? Is opposition to SJR 2 just based on a pro-choice perspective? That may be the case, it may not be the case. My goal is to always attribute good faith to the people with whom I’m having debates and discussions.”

Strang did not respond to interview requests for this story.

Strang and the abortion ban

Strang has previously given Ohio Statehouse testimony, in favor of banning abortion care.

In written testimony for 2011’s proposed version of Ohio’s six-week abortion ban — which was eventually passed in 2019 and put into effect last summer before it was held up by a lawsuit — Strang described becoming interested in constitutional law “when I was a young boy attending pro-life events with my mother.”

His engagement with anti-abortion causes has been a consistent feature of his adult life as well. In the same testimony, Strang added that he was a board member for Toledo Area Right to Life.

Strang contended in 2011 that informed consent provisions were a good idea, but although “the goal of outlawing abortion is one I share,” a proposed ban would be counterproductive. He argued the law would likely get struck down in court. That loss would only create further precedent and thus increase the difficulty for advocates trying to outlaw abortion.

In 2019, Strang again testified in favor of abortion prohibitions. This time, he offered starkly a different argument.

“Even assuming the Heartbeat Bill is inconsistent with Supreme Court precedent such as Roe and Casey. Ohio lawmakers’ oath of office does not prohibit them from adopting it,” Strang wrote.

He argued that Ohio lawmakers aren’t bound by the U.S. Supreme Court’s “nonorginalist interpretation” in landmark abortion cases like Roe v. Wade, because those rulings “are not a proper exercise of federal power.”

“One must identify a source of constitutional authority that the U.S. Supreme Court lawfully exercised to constrain state lawmakers,” he wrote. “Absent that, state lawmakers retain interpretive independence because the power they exercise is granted them by their state constitution and the citizens of their state.”

Strang and the broader pro-life movement

In addition to his advocacy for Ohio’s six-week abortion ban, Strang has been a reliable source of legal expertise for anti-abortion organizations.

In 2021, Strang submitted an amicus brief in the Supreme Court case that would eventually overturn Roe v. Wade. In a footnote, he thanked the Ohio-based anti-abortion organization Center for Christian Virtue for funding the brief.

Strang argued an unborn fetus actually does fit into the original meaning of “person” in the Fourteenth Amendment.

“Original expected applications of the Constitution’s text are not its meaning,” Strang argued. “New circumstances or new information may warrant different applications of the original meaning.”

Strang argued that state laws at the time “protected unborn human life to the extent they recognized unborn humans as human,” so there’s no inconsistency with rendering a different interpretation of personhood.

The day after Politico published a leaked draft of the opinion in that case, Strang sat down for an hour long interview with Center for Christian Virtue president Aaron Baer.

Strang came to a different conclusion about Roe just two years prior. In a radio interview with Ohio Right to Life CEO Peter Range, he argued Roe’s reasoning that fetuses don’t meet the meaning of “person” is correct, but the ruling’s finding of a right to abortion “has no support in the text of the constitution.”

Strang and education

Strang also helped found, and serves as board president, of the Northwest Ohio Classical Academy. The Toledo charter school offers what it calls a “classical” education for K-12 students.

It’s not an explicitly Christian school, but it’s also not not Christian. The school itself is housed in a former church. A promotional video last month shows cinderblock walls going up for six new high school classrooms. The original cross still crowns the former sanctuary.

Strang himself said the initial idea was to establish a “religiously oriented” school, and he described how it’s training his children to be “faithful believers.” Earlier this year, right-wing talk show host Steve Deace spoke at a school fundraiser. Afterward he praised the school for “doing something for the King of Kings and country.”

Much of the school’s curriculum, and several faculty members, come from Hillsdale College. The private Christian university in Michigan has an outsized role in right-wing politics, and its charter school network extends far beyond the Midwest.

Student field trips intersect with abortion politics as well. One Facebook post describes how students “engaged in the legislative process.” They didn’t visit city hall or the Ohio Statehouse — they attended the anti-abortion Foundation for Life’s legislative breakfast. In another example, they dropped off baby clothes and toys at the crisis pregnancy center Heartbeat of Toledo.

Strang and intellectual diversity

Strang is also deeply engaged in an effort to establish what state lawmakers term “intellectual diversity centers” at his own University of Toledo as well as at Ohio State University. The sponsor of that bill is also backing the higher constitutional threshold.

Strang first got the idea for the Institute of American Constitutional Thought and Leadership at UT’s College of Law back in 2019 after visiting the Georgetown Center for the Constitution and Princeton University’s James Madison Program, he told the OCJ in May.

Now, the proposed institute is part of Senate Bill 117. Sen. Rob McColley, R-Napoleon, and Sen. Jerry Cirino, R-Kirtland, introduced the bill in May, arguing that university faculty are predominantly liberal. Hence, they say, the need for these centers.

“(The institute is) a mission of academic excellence, it’s a mission of a wide variety of viewpoints debating, discussing these important constitutional issues, role modeling vivid debate and discussions for future leaders in the legal profession in Ohio,” Strang told the OCJ in May.

The institute, which would host lectures and debates, would be “established for the purpose of creating and disseminating knowledge about American constitutional thought and to form future leaders of the legal profession through research, scholarship, teaching, collaboration, and mentorship,” according to the text of the bill.

One of the goals of the institution would be to “expand the intellectual diversity of the university’s academic community and to create a rich forum for the development of ideas across the political and ideological spectrum,” according to the bill.

But UT Law students have spoken out against the bill, saying it will cause students to look elsewhere for law school and won’t properly prepare students for the bar exam.

The bill would give UT $1 million in fiscal year 2024 and $2 million in fiscal year 2025 for the Institute.

SB 117 was recently voted out of committee and now awaits further consideration in the Senate.

Follow OCJ Reporter Nick Evans on Twitter.

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Nick Evans
Nick Evans

Nick Evans has spent the past seven years reporting for NPR member stations in Florida and Ohio. He got his start in Tallahassee, covering issues like redistricting, same sex marriage and medical marijuana. Since arriving in Columbus in 2018, he has covered everything from city council to football. His work on Ohio politics and local policing have been featured numerous times on NPR.

Megan Henry
Megan Henry

Megan Henry is a reporter for the Ohio Capital Journal and has spent the past five years reporting in Ohio on various topics including education, healthcare, business and crime. She previously worked at The Columbus Dispatch, part of the USA Today Network.