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January 29, 2010
Foes of Cleveland’s partner registry are back in court
Their case against it is the same as one that lost in 2004
Cleveland--Opponents of Cleveland’s domestic partner registry, who sued the city claiming it violates the state marriage ban amendment, now want an appeals court to reinstate the case after a judge threw it out.
The suit, filed last August by a newly-founded group and a Cleveland anti-gay activist, was dismissed in November by Cuyahoga County Common Pleas Judge Joseph D. Russo.
It is nearly identical to a 2004 case which their attorneys lost against a Cleveland Heights registry.
The Heights measure was ultimately upheld by the Eighth District Ohio Court of Appeals--the same court that will hear this case.
The current suit was filed by a group calling itself Cleveland Taxpayers for the Ohio Constitution and city resident Dorothy McGuire. They are represented by attorney David Langdon of Cincinnati--who wrote the marriage ban amendment--and the anti-gay Alliance Defense Fund of Scottsdale, Arizona.
The same lawyers represented former Cleveland Heights councilor Jimmie Hicks six years ago in his suit against that city’s registry, a measure identical to the Cleveland one.
The arguments in the current suit are also nearly identical to the ones rejected by the same courts in the Hicks suit.
Back then, Cuyahoga County Common Pleas Judge Robert Glickman ruled the domestic partner registry constitutional, adding, “The Cleveland Heights domestic partner registry is not beyond the scope of the municipalities’ grant of power.”
That ruling was appealed to the Eighth District, which upheld Glickman, declaring that the partner registry is constitutional and “an act of self-governance.”
The amendment had not yet been passed when the Hicks case was decided.
In papers for the current case, Langdon told Judge Russo that the Ohio constitution’s marriage ban amendment “prohibit[s] the government from nouveau policy experimentation further impacting the already embattled institution of marriage.”
Langdon quotes his ban amendment’s second part.
“[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 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 . . .”
Langdon notes the Ohio Supreme Court’s 2007 State v. Carswell decision, which narrowed the amendment to prohibit only same-sex marriage and civil union as part of a ruling that it doesn’t keep domestic violence laws from applying to unmarried couples.
He argues that the high court also meant to prohibit domestic partner registries, writing that the court only ruled the way it did in Carswell to preserve the domestic violence law.
Langdon called the domestic violence law “an otherwise useful statute,” compared to the domestic partner registry, which has “no conceivable purpose other than to allow those couples who are prohibited from being married in this state to enter a government-sanctioned marriage-approximating relationship.”
“To interpret the majority’s holding in Carswell as prohibiting the recognition of only those relationships that bear literally each and every attribute of marriage and as permitting any relationship that lacks any of these attributes would be to suggest that the majority completely disregarded the language of the amendment,” Langdon wrote.
“It should be presumed that the court would have not crafted a test so manifestly contrary to the plain text of the amendment,” Langdon concluded, calling the city’s interpretation of Carswell “overly literal.”
The city, represented by assistant law director Michael Cosgrove, asked the court to dismiss the suit, arguing that the Supreme Court was clear in Carswell, and that Langdon is asking the court to define the powers of self-governance so narrowly that the city would not be able to operate municipal parks and stadiums or maintain its streets.
Cosgrove told the court that Hicks was decided properly and called Langdon’s presumption “mere partisan speculation.” Further, Cosgrove asserted that Langdon tried to mislead the court by quoting a subsequently reversed Pennsylvania case also dealing with rights of same-sex couples.
Russo agreed with the city and summarily dismissed the case without comment on November 11.
Langdon filed notice of appeal December 1, then was granted an extension to file his brief, which is now due February 8.
The registry has remained open uninterrupted, as have the identical ones in Cleveland Heights and Toledo.
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