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August 28, 2009

 

Partner registry foes sue city to have it closed

Cleveland--Foes of the city’s new domestic partner registry--joined by some familiar names from Cincinnati and Arizona--have sued to have it ended.

They claim that it violates Ohio’s 2004 marriage ban amendment, although courts have already ruled that both measures are so limited that there is probably no violation.

The suit, filed in Cuyahoga County Common Pleas Court on August 12, is similar to an unsuccessful one filed in 2004 by the same lawyer against Ohio’s first registry, in Cleveland Heights.

The Cleveland registry is nearly identical to the Heights one, and to another one in Toledo.

“We believe the lawsuit does not have merit and will defend ourselves against it,” said Cleveland Law Director Robert Triozzi.

Like the earlier suit, this one is a taxpayer action. It was filed by Cincinnati attorney David Langdon, who is being paid by the anti-gay Alliance Defense Fund in Scottsdale, Arizona.

The suit also asks the court to make the city repay the cost of bringing it.

The taxpayer in the latest suit is Dorothy McGuire of Cleveland, whose Berea Road residence is also the address of the group she represents, Cleveland Taxpayers for the Ohio Constitution.

In the suit, Langdon described the group as “an unincorporated association, several members of which are taxpayers and residents of the city.”

McGuire was one of the people circulating petitions to force a vote on the registry earlier this year. She was gathering signatures on Public Square at a National Day of Prayer event on May 7, the same day the registry opened.

Nothing has come of the petitions, so far.

McGuire told the Chronicle that day that she is a member of St. Vincent de Paul Church. She also contributed $750 to the 2008 presidential campaign of anti-gay commentator Alan Keyes, who evicted his daughter when she came out in 2005.

It is not known who the other members of McGuire’s group are, or how many.

Langdon says that the Cleveland registry “provides for the creation of a new legal status between two individuals.”

“Specifically,” Langdon claims, “it creates the relation of ‘domestic partnership’ patterned after the marriage laws in Ohio.”

Langdon notes Ohio’s constitutional marriage ban amendment, passed by voters in 2004 as Issue 1. “The people of the state of Ohio have recently amended their constitution to prohibit the government from nouveau policy experimentation further impacting the already embattled institution of marriage.”

Langdon wrote the marriage ban amendment. It is widely believed that he aimed its second sentence, which is intended to bar anything similar to marriage, specifically at the Cleveland Heights registry. He has never denied this.

Registry is only ‘names on a list’

Langdon represented then-city councilor Jimmie Hicks and taxpayer Charles Byrne in the Cleveland Heights suit five years ago.

That suit, however, didn’t involve the amendment, which hadn’t passed at the time. It was brought under the “defense of marriage act” passed by the state legislature earlier that year. Both the suit and the act were backed by another of Langdon’s clients, Citizens for Community Values of suburban Cincinnati, which is also involved in the present suit.

CCV vice president David Miller said in June that he sees the ban amendment as the difference between a Cleveland suit and the one his group lost against Cleveland Heights.

Back then, Langdon argued that the Cleveland Heights registry violated “Ohio’s ‘strong public policy’ in favor of marriages between one man and one woman and against marriages between persons of the same sex.”

Cuyahoga Common Pleas Judge Robert Glickman ruled against him. “Foreign jurisdictions are not bound to acknowledge the registry or confer any rights or obligations,” Glickman wrote. “The registry does not create any result, either within the city or outside its territory, other than the mere existence of names on a list.”

Now, Langdon quotes his ban amendment’s second sentence.

“[The registry] is in conflict with the second sentence of the Marriage Amendment, in that it creates and recognizes a ‘legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or the effect of marriage,” Langdon wrote in the Cleveland suit.

“Thus, the city’s adoption and administration of the [registry] constitutes an abuse of corporate power . . .”

In the earlier suit, Glickman addressed this as well. “The Cleveland Heights domestic partner registry is not beyond the scope of the municipalities’ grant of power.”

Hicks and Byrne appealed Glickman’s ruling to the Eighth District Ohio Court of Appeals--the same one that will eventually hear the Cleveland case.

In a unanimous opinion, the appeals court upheld Glickman’s decision, declaring that the domestic partner registry is constitutional and “an act of self-governance.”

Ohio top court limited ban’s reach

By the time the Eighth District ruling came, the constitutional amendment had passed, and Langdon said he was going to sue again under the amendment. But he never did, until now.

What did occur, though, was the Ohio Supreme Court’s ruling in the 2007 Carswell case.

In Carswell, the high court held that the state’s domestic violence laws still applied to unmarried couples under the ban amendment. It also narrowed the amendment’s second sentence to include only marriage and civil unions.

Chief Justice Thomas Moyer wrote: “The second sentence of the amendment means the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage--a marriage substitute.”

The key word is all of the attributes, not some of them, as Langdon is now asking the lower court to rule.

Moyer reinforced this a couple of paragraphs later, saying, “It is clear that the purpose of Issue 1 [the amendment] was to prevent the state, either through legislative, executive, or judicial action, from creating or recognizing a legal status deemed to be the equivalent of a marriage of a man and a woman.”

Moyer’s example of what the court considers a “marriage substitute” or equivalent is a civil union.

In order for McGuire and her group to prevail against Cleveland, the high court would need to change its mind and expand the amendment’s second sentence beyond what it said in Carswell.

Last January, the justices signaled an unwillingness to do this when they declined to hear a child custody suit that also sought to expand the amendment’s reach.

The current suit is before Judge Joseph D. Russo.

The city of Cleveland will file its response in mid-September.

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