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Top Stories This Week in the Chronicle.
August 31, 2007

Marriage ban shrinks a little
bit more

Suit against Miami University partner benefits is tossed out, again. This time the court limits who can sue this way

Middletown, Ohio--A very conservative appeals court stunted the reach of the Ohio constitution’s marriage ban amendment by sharply limiting who can bring a lawsuit under it.

The Twelfth District Court of Appeals ruled unanimously August 28 that State Rep. Thomas Brinkman has no standing to sue Miami University over the health insurance benefits it offers to the same-sex domestic partners of its employees.

The court upheld a trial court’s dismissal of the case last November. Neither court looked at the benefits themselves, only Brinkman’s grounds to sue as a taxpayer.

The appeals court severely limited anti-gay activists’ ability to use “taxpayer action” suits against the rights and benefits of same-sex couples. This type of suit has been the preferred strategy of the amendment’s authors, attorneys David Langdon and Jeffrey Shafer, in attempts to curtail rights and benefits for LGBT Ohioans.

Langdon still represents the amendment’s backers, Citizens for Community Values of Sharonville, near Cincinnati. Shafer now works for the anti-gay Alliance Defense Fund in their Washington, D.C. office. ADF is paying Brinkman’s legal costs in this case.

The Twelfth District court defined the eligibility to bring a taxpayer action in narrow terms, making it almost impossible. Other types of suits can be used by benefit opponents, such as writs of mandamus or prohibition. But these have always been difficult to bring.

The appeals court was not asked if the university’s partner benefits violate the amendment, passed by voters in 2004. However, that question is likely moot since the Ohio Supreme Court ruled earlier this month that only civil unions are a “marriage substitute” prohibited by it.

When Butler County Judge Charles L. Pater dismissed the case last November, saying that Brinkman has no standing as a taxpayer and can’t sue, it became an opportunity for anti-gays to enlarge the number of taxpayers that could sue against LGBT rights and benefits.

(The conservative Pater, as a magistrate in 2000, denied a lesbian couple and their children the right to a common last name, citing “divine edict” and “natural law.” His ruling was upheld by this same appeals court but the Ohio Supreme Court reversed it in 2002.)

When the Miami case was argued July 2 before the three-judge appeals panel, Shafer and Langdon asked the court to accept a broad description of who would have standing to file a taxpayer action. It didn’t.

Ohio courts have made it difficult to bring taxpayer actions, so that governments aren’t challenged on every line of every budget by citizens who disagree with this or that expenditure.

Courts have generally held that taxpayer actions can only be brought by a plaintiff who suffers “an injury different in character or degree than that suffered by the general public,” which is difficult to prove.

The U.S. Supreme Court has carved out an exception to that, making taxpayer actions easier to bring when the case involves the “establishment clause” of the U.S. Constitution separating church and state. That exception was discussed by the 12th District court, but they agreed that it does not apply in this case.

“The taxpayer’s damages are presumed, by virtue of the fact that the taxpayer is a contributor to the fund being challenged,” wrote Langdon in their brief.

The panel, composed of Judges H.J. Bressler, James I. Walsh, and James A. Brogan, who was visiting from the Second District, strongly rejected all three of Brinkman’s arguments, then clarified what constitutes an injury enough for a taxpayer to have standing.

Brogan, who presided over the hearing and wrote for the court, opined, “It is equally fundamental that at common law and apart from statute, a taxpayer cannot bring an action to prevent the carrying out of a public contract or the expenditure of public funds unless he has some special interests therein by reason of which his own property rights are put in jeopardy.”

“Finally, and perhaps most importantly,” wrote Brogan, “we disagree with Brinkman’s assertion that this is the ‘rare and extraordinary’ case warranting invocation of the public right exception to traditional standing rules.”

“We see no public-interest threat . . . arising from Miami University’s decision to extend domestic-partner benefits to its employees,” Brogan continued. “Even if the university’s conduct violates Section 11, Article XV of the Ohio Constitution [the ban amendment] . . . not every constitutional violation justifies the recognition of public-right standing.”

Miami University is represented by Ohio attorney general Marc Dann, who has hired Kathleen M. Trafford of the firm Porter, Wright, Morris and Arthur as outside counsel.

Jean Lynch and Yvonne Keller, two lesbian professors who would be adversely affected if the benefits were halted were allowed to join the suit on the side of Miami University. They are represented by Cincinnati attorneys Jennifer Branch and Alphonse Gerhardstein, and James Madigan of the Lambda Legal Defense and Education Fund.

“Lesbian and gay employees and their families’ health were at stake and today the court has granted them freedom from being a pawn in politically motivated lawsuits,” said Madigan in a press release. “The court has affirmed that Mr. Brinkman’s daily life is unaffected when the domestic partners of lesbian and gay university employees have health insurance and he therefore has no standing to bring a lawsuit.”

At press time it is not known whether Brinkman will appeal to the Ohio Supreme Court, which does not have to accept the appeal.

Currently, four other state universities offer domestic partner benefits: Ohio University, Ohio State University, Cleveland State and Youngstown State.

One city, Cleveland Heights, offers domestic partner benefits to its employees the same as to those offered to married spouses.



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