December 30, 2005

Miami University: No standing for suit against partner benefits

by Eric Resnick

Hamilton, Ohio--Miami University says that a lawsuit against its domestic partner benefits has no merit because it goes against the U.S. Constitution and the man behind it has no standing to sue the school.

Two lesbian couples whose health insurance is threatened have also asked to join the case.

State representative and anti-gay activist Thomas Brinkman, Jr. of Cincinnati sued the school in November. Brinkman, who has a daughter and a son attending Miami, says the benefits violate Ohio constitutional ban on same-sex marriage and recognition of any couple outside of marriage.

The case is being closely watched by the four other state universities that offer domestic partner benefits: Ohio University, Ohio State University, Cleveland State and Youngstown State.

Miami, under the direction of its president Jim Garland, began offering the benefits four months before the amendment passed in November, 2004.

In order for Brinkman to prevail, the courts need to rule that the benefits �approximate� marriage as described in the amendment�s second sentence:

�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 amendment�s backers said during their campaign that the sentence was only intended to deny recognition of civil unions and domestic partnerships. However, it could encompass much more. Courts are now considering its effect on child custody and domestic violence cases.

The Miami suit is the most significant legal test to date of what the second sentence means. It is in the Butler County Court of Common Pleas before Judge Charles L. Pater.

Brinkman is represented by attorney Jeffrey Shafer of the anti-gay Alliance Defense Fund of Scottsdale, Arizona. His co-counsel is David Langdon of Sharonville, near Cincinnati. The two drafted the marriage ban amendment when they were law partners. Shafer has since gone to work for ADF in their Washington, D.C. office.

ADF is paying for Brinkman�s side of the suit as they have paid for other anti-gay legal activity in Ohio, including the unsuccessful challenge to the Cleveland Heights domestic partner registry by city council member Jimmie Hicks, Jr.

The university is represented by Columbus attorney Kathleen Trafford with the firm Porter Wright Morris and Arthur. She was appointed special counsel by Ohio Attorney General Jim Petro, who is ultimately responsible for representing state universities and will decide how far to appeal the case if the university loses.

Trafford filed a six-page answer to Brinkman�s complaint December 21, mostly denying the allegations.

She also proffered six affirmative defenses, including that Brinkman does not have standing to bring the suit, and that he is using an �erroneous interpretation� of the amendment.

Trafford also asserts that Brinkman�s interpretation of the amendment violates the equal protection and due process set forth in the Fourteenth Amendment of the U.S. Constitution and the part of Article I Section 10 restraining states� ability to impair the obligation of existing contracts.

However, she does not call for the amendment to be declared unconstitutional. She suggested that the court dismiss Brinkman�s complaint and order payment of the university�s costs, but she did not put that in the form of a separate motion, which the court needs in order to grant it.

Trafford did not respond to numerous attempts to contact her for this report.

Two couples ask to join case

Lambda Legal Defense and Education Fund, with the help of Cincinnati attorney Alphonse Gerhardstein, has asked Judge Pater to intervene in the case on behalf of two lesbian couples who would lose benefits if Brinkman is successful.

Pater has not yet decided on their request, but if he agrees, sociology professor Jean Lynch and her partner Helenka Marculewicz, and interdisciplinary studies professor Yvonne Keller and her partner Susan Gray will join the case on the side of the university.

Lynch has been an employee of Miami since 1988 and has been with Marculewicz for 17 years. Marculewicz works for a small nonprofit that does not provide health insurance. Her coverage by the university made knee replacement surgery possible.

Keller has worked for the university seven years and been with Gray for five. The couple has two children. Gray is self-employed. The couple says the domestic partner benefits helped cover the costs of the birth of their second child and make the child�s health care coverage financially possible.

Both couples assert that the domestic partner benefits are lawful and that to deem them unlawful would violate their contractual and property rights.

All parties expect the case to continue for years and ultimately be settled by the Ohio Supreme Court.

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