December 12, 2003

Ohio anti-marriage bill advances

Changes to �Defense of Marriage Act� may not stop it from harming partner benefits

by Eric Resnick

Columbus--A bill to block state recognition of same-sex marriages passed an Ohio House committee on December 9, and was set to pass the full House the next day.

The Juvenile and Family Law Committee passed the bill after Republican members amended it to defuse criticism that it could be used to strike down local and private domestic partner benefits.

Passage seemed likely in the full House of Representatives late on December 10, but the issue had not come to a vote by press time. The House broke into party caucuses in midafternoon to consider further changes to the measure.

Passage in the House would send the bill to the state Senate.

Senate President Doug White, a Republican from Manchester, told the Lancaster Eagle-Gazette that he would assign the bill to committee if it came to the Senate, but that it was not high priority.

Former Senate President Richard Finan did not assign a similar bill to committee last session, effectively killing it.

The bill is intended to deny recognition of same-sex marriages and civil unions made in other states and countries. But a statement that �specific statutory benefits of marriage� are against the �strong public policy of the state� may have threatened domestic partner benefits.

After a weekend of negotiation between committee chair Michael Gilb of Findlay, bill sponsor Bill Seitz of Cincinnati, House Speaker Larry Householder, and other Republicans, the committee amended the bill before voting it to the House floor.

During the brief committee meeting where the measure was approved, Gilb spoke about the need to clarify the bill�s language to show that the limitations placed on benefits available to non-married couples in Ohio are �limited to state actions, and not intended to affect local governments or private entities.�

Eight Republican members and two Democrats attended the December 9 meeting.

Gilb offered an amendment adding the words �by the state� to sections of the bill, which he said would limit it to state actions. It was seconded by Republican Rep. John Willamowski of Lima.

Rep. Nancy Hollister of Marietta, the only Republican who voted against a nearly identical bill when it was in the House in 2001, asked if Gilb�s amendment would also include university employees and employees of mental retardation and developmental disabilities facilities.

Gilb said he was not sure, but said that was the intent of the language. He then asked if there was any objection to the amendment.

�Hearing none, it becomes part of the bill,� said Gilb.

He then offered a second amendment inserting language that he said would make it clear that the bill is not intended to affect private companies. This was seconded by Republican Rep. Linda Reidelbach of Columbus.

The amendment states that nothing in the bill should be construed to �affect the validity of private agreements that are otherwise valid under the laws of this state.�

The second amendment passed without opposition.

A third amendment was introduced by Democrat Sandra Harwood to delete every section of the bill dealing with �specific statutory benefits of a legal marriage.� That amendment was seconded by Todd Book, also a Democrat.

�After consulting with the Council of State Governments, it is clear that similar bills in every other state merely restate public policy,� said Harwood, adding that her amendment would bring Ohio�s bill in line with the other 37 state DOMAs.

�If Ohio passes this bill as it is, we will be the first state to go down the road of interfering with benefits,� she said. �I see this as going down a road of knocking people off health coverage, which would eventually raise Medicaid costs and cost the state more money.�

She said that if all the state wanted to do was to restate a public policy against same-sex marriage, it should introduce the DOMA bills that failed in 1997 and 1999, which were limited to just that.

There was no further discussion on Harwood�s motion before Willamowski moved to �lay the motion on the table,� effectively killing it without further discussion.

Gilb seconded Willamowski�s motion and a vote was taken. Of Republicans, only Hollister voted against Willamowski�s motion to kill Harwood�s amendment, and the motion passed 6-3.

Willamowski then moved to send the bill to the House floor for a vote. Reidelbach seconded that motion, and it passed unanimously.

�Statutory benefits� not defined

Following the meeting, Hollister approached Gilb with concerns that his amendment didn�t define �specific statutory benefits of legal marriage.�

She expressed concern that the bill was still too vague, and could be misinterpreted by courts.

Ohioans for Growth and Equality president Tim Downing said Gilb�s amendments �pretty up the language, but don�t do anything.� He said Gilb is �only part right� about his explanation that the amendment limits the bill to �statutory� benefits, and that �statutory� is defined in the Ohio Revised Code.

�The code doesn�t mention �statutory benefits�,� said Downing. �It mentions �spouse� about 700 times. By not defining what �statutory benefits� are and aren�t, the changes don�t do anything except make work for lawyers and courts.�

Absentees could have stopped bill

Downing was also furious about the lack of committee debate on the bill, the fact that only two of four Democrats showed up, and that in the end, the vote to send it to the floor was unanimous.

Democrats Lance Mason of Shaker Heights and Shirley Smith of Cleveland did not attend the committee vote. Smith said she had an emergency at home and did not make it back to Columbus in time. Mason said he was under court order to be elsewhere at the time of the meeting.

A staff member for a Democratic legislator said that if Mason and Smith had been there to vote for Harwood�s amendments, they would have also gotten the votes of Republicans Hollister and Williams. With Harwood and Book, this would have been six of 11 votes to strip all the �statutory benefits� language and possibly stop the bill in committee.

�We got screwed,� said Downing. �Our enemies screwed us, and our so-called friends screwed us.�

Gilb believes changes worked

When asked later about his amendments, Gilb restated that their intent was to clarify that the law was only to protect the definition of marriage from what other states might do.

Gilb acknowledged that DOMA bills that failed in 1997 and 1999 would have done that without the new bill�s �specific statutory benefits� language.

Asked why he and the proponents were �pushing the bill like this when it goes far beyond what you say you want to do,� Gilb replied, �That�s a good question. I don�t know.�

The next day, Gilb said he backed the measure because, �I think it is good public policy.�

�It seemed during testimony that both opponents and proponents seemed to be concerned about judicial activism, and making sure that judges don�t infringe on private agreements or rights,� he said.

Gilb said the bill didn�t define �statutory and legal benefits� because �I�m afraid we�d miss one if we listed them all.�

He added that his two amendments clarify the intent of the bill.

�We listened to the opponents and addressed their concerns in the amendments,� he said.

Gilb dodged when asked if he would sponsor another bill to remedy the situation if provisions in this bill are used by anti-gays suing to end partner benefits.

�It would be our job to look at the impact of this legislation on unmarried couples, but I think with the amendments we should have what is needed in place to protect family relationships,� he said.

DOMA opponent testimony centers on bills effect

by Eric Resnick

Columbus--Members of the Ohio House Juvenile and Family Law Committee heard four hours of testimony against the so-called Defense of Marriage Act by opponents on December 3.

When the 19 opponents finished, three proponents also testified. The overflow crowd filled a hearing room that holds 96, with the rest seated in an atrium across the hall.

The hearing was videotaped by the anti-gay Citizens for Community Values of Cincinnati. About a dozen in the crowd were wearing stickers that identified them as anti-gay, including Columbus Pride flag burner Charles Spingola.

The hearing began after a three hour delay before Republican Reps. Michael Gilb of Findlay, the committee chair; Kathleen Walcher of Norwalk, Linda Reidelbach of Columbus, Bryan Williams of Akron, John Willamowski of Lima, John Widowfield of Stow and Democrats Sandra Harwood of Warren and Lance Mason of Shaker Heights.

By the end of the hearing, only Gilb and Willamowski remained.

Cleveland attorney and Ohioans for Growth and Equality president Tim Downing opened his testimony by declaring that if CCV used footage of it for any reason, they would be sued. Downing spoke for 45 minutes, then answered members� questions.

He told members that Ohio already has a strong public policy against same-sex marriages. He noted that the 1958 Mazzolini v. Mazzolini case, often cited by DOMA sponsor Bill Seitz and other proponents as a main reason to pass the bill, is no longer applicable.

In the Mazzolini case, the Ohio Supreme Court found that a Massachusetts marriage between first cousins was valid in Ohio because there was no explicit provision in the Ohio Revised Code prohibiting marriage between first cousins.

�Ohio law has been amended [since then] to expressly limit marriage to one man and one woman and who are not first cousins,� said Downing. �Since there is now an explicit prohibition against marriage between first cousins, Mazzolini is no longer binding legal precedent.�

Downing told the members how and why same-sex marriages performed in other countries are not valid in Ohio, and civil unions from other states are also not recognized by Ohio.

He said the language in the Ohio DOMA bill is �ambiguous and statutorily undefined� and could lead to many harmful consequences for Ohio families.�

�It could be used to thwart the ability of an aunt or grandmother to obtain guardianship or custody of an abused niece, nephew, or grandchild living with their married parents if the court determines that child-rearing is a �statutory benefit of legal marriage� available only to married couples in Ohio,� said Downing.

Downing added that similar language could invalidate health care benefits extended by public and private employers to anyone other than legally married spouses.

He told the committee that the language could be used to invalidate custody orders granted by judges in Ohio and legal adoptions granted by courts of other states if the couple is not legally married.

Downing said that 231,000 Ohioans live in unmarried households, according to the 2000 census, and would be adversely affected if DOMA is passed.

He presented a letter from NCR Corp. of Dayton opposing the bill.

In the letter, NCR said, �If passed, DOMA will challenge our ability to continue offering these high quality benefits to our GLBT employees, and any additional benefits we may wish to extend in the future.�

NCR is one of 53 Ohio corporations offering domestic partner benefits to employees.

�I don�t think the committee should be putting Ohio�s largest employers at risk,� said Downing.

Susan E. McManus, a Nationwide employee, made it clear that she was not representing her employer. The Columbus insurance company also offers partner benefits.

�I am here as an individual businessperson who is responsible for hiring and retaining employees for a Fortune 500 company based in Ohio,� McManus said. The bill �handicaps Ohio businesses when competing with many companies nationwide who also are trying to recruit and hire top employees.�

�H.B. 272 puts Ohio businesses at risk for costly legal challenges,� said McManus. �It will make businesses vulnerable to lawsuits that claim their employment benefits packages violate Ohio law.�

Ohio Women, Inc. president Susan Bader told the committee that her organization is concerned about the how the bill�s language could affect survivors of domestic violence who are not married to their batterer.

Karen Andermills of Columbus told the committee that even without the bill, she and her partner Dorrie Andermills found that there is no way a same-sex couple with a civil union in another state or a marriage in another country could sue Ohio for recognition and win.

The Andermills had a civil union in Vermont in 1999 and were married in Canada over the summer.

�The laws in Ohio have established clear, strong public policy concerning same-sex couples,� said Andermills, adding that they had consulted legal scholars regarding their filing such a suit.

�Believe me,� she added, �If we felt there was even a slight chance to win through litigation, we would be in court today.�

�Ohio will never be the target of a lawsuit from the national efforts to win the right to marry,� said Andermills. �Should a rogue couple sue in Ohio, they will lose and actually create even stronger case law against equality for same-sex couples.�

Andermills added that they are planning to leave Ohio after they retire so they can be in a place that gives them protection.

�Suing Ohio isn�t a viable option,� said Andermills. �We will have to move our home.�

City council honors original hosts at 24th holiday dinner

by Anthony Glassman

Toledo--The city�s 24th annual Christmas dinner dance was held on December 7, for the second year benefiting the Toledo Area Pride Center.

It was also the second year that the dinner was held at Cousino�s Navy Bistro, which donated five percent of the proceeds from the two cash bars at the event to the TAP Center.

Four of the nine people who originated the event as a night of camaraderie during the holiday season returned as hosts for this year�s dinner. Dick Flock, Dave Hindall, Ed Hoffman and Steve Brown also received proclamations from Toledo City Council in honor of the event.

Openly gay council president Louis Escobar presented the men with the framed proclamations.

Also present at the dinner was Don Bacigalupi, the new director of the Toledo Museum of Art, along with another member of the original nine diners and the assistant director of the Toledo Opera.

�I thought it was a beautiful evening,� Hoffman said. �I can say nothing negative about the evening.�

He was especially proud of the presence of representatives from city government and the arts, which he viewed as an indication of the support Toledo affords its LGBT community.

�We had city council representation, the Toledo Opera and the Toledo Museum of Art,� he said proudly.

Entertainment was provided by Pantyhose, a drag king trio, Sing Out Toledo, the Toledo Opera and Karen and Company. Before dinner, Karen and Company played music during the cocktail hour, and after dinner provided music for dancing between other performances.

�The meal was fantastic, the music was good and the entertainment was great,� said TAP Center president Thomas Meinecke.

For Meinecke, the fact that the event benefits the TAP Center and drew around 250 people proves that the organization is needed.

�We are really thankful that they recognize the importance of this new community center to Toledo,� he said.

Judge voids sentence for nonexistent sex crime

by Eric Resnick

Warren--A visiting judge has thrown out the first sentence of a gay man convicted twice of nonexistent sex crimes and jailed for four months.

Judge Thomas W. Townley of Niles granted the motion of Keith Phillips, 21, of Youngstown, to withdraw his �no contest� plea and dismiss the first case against him. The judge also granted a stay of the remaining part of the second sentence while the second charge is being appealed.

Phillips was charged with importuning on December 16, 2002, seven months after the Ohio Supreme Court voided the law and one month after the city of Warren repealed its identical ordinance.

Before the high court declared it unconstitutional, the importuning law had made it a crime to ask someone of the same sex for sex, if it would offend them.

Phillips was charged under the nonexistent measure after a co-worker complained that banter between them had become too crude.

Without a lawyer and unaware the crime didn�t exist, Phillips pleaded no contest and was sentenced to 180 days suspended, a $600 fine, five years probation including sex offender courses, and monitoring of his computer.

Townley vacated this entire sentence. The visiting judge heard the case after Warren Municipal Judge Thomas P. Gysegem, who convicted Phillips in both cases, was named by Phillips in an $11 million federal lawsuit. He is also suing the city, his lawyers in the second case, and two social workers who wrote a pre-sentencing report on him.

The sentence in the second case stems from the one now vacated. Phillips was arrested at his workplace on April 14, 2003 and accused of soliciting a 14-year-old boy three days earlier.

This time, he was charged with felony importuning under a section of the law covering juveniles, which is still in effect. He was represented by Youngstown attorney Ben Joltin.

Phillips produced his time card showing he was at work when the youth said the incident occurred, and four co-workers to testify to the same. Phillips� car does not match the one the boy described, nor does he match the teen�s description of the driver that asked him for oral sex.

Joltin never presented this evidence to the court. Instead, he negotiated a plea bargain for Phillips to spend 120 days in jail in return for no probation violation from the first case. Judge Gysegem suspended an additional 60 days.

As part of the plea bargain, the city reduced his charge to the local importuning ordinance, repealed months earlier. Phillips was jailed under this nonexistent measure.

Joltin and his employer, State Sen. Marc Dann, are named in Phillips� suit.

Gysegem and Warren Prosecutor Traci Rose are legally and ethically responsible for making sure that prosecutions take place only under existing laws. However, both have immunity and cannot be sued by Phillips for their actions in his case.

A slander charge for Gysegem was added to the suit after he made comments about Phillips in a local newspaper. Since this is not considered a judicial act, it doesn�t have immunity from lawsuits.

Phillips was not in the judge�s chambers during the ten-minute hearing where Townley vacated the first sentence. Present were his attorneys, Tom McNerney and Deborah Smith of Northfield, and prosecutor Rose.

According to Smith, Rose protested Phillips� claim that he suffered �manifest injustice� by being convicted of the nonexistent crime.

�[Rose] said they could have charged him with something else like telephone harassment, so they didn�t think it was manifest injustice,� said Smith, adding that Rose knew that would not stand up on appeal, so she eventually backed down.

�As prosecutors, they make their best case,� said Randi Barnabee of Northfield, Phillips� lawyer in the federal suit. �They put their best case forward, so by saying that, it begs the question as to why they didn�t charge him with it then.�

Rose did not return calls for comment, but according to Smith, she said at the hearing that whether or not to charge Phillips with something else was a political decision made above her level.

�My opinion is that they might charge him with something else just so they don�t look too bad to the public,� said Smith. �It would be damage control for them.�

Smith and McNerney decided to appeal the second conviction to the Eleventh Ohio District Court of Appeals instead of moving to vacate it, as they did the first charges.

�The city would have just reinstated the felony then,� said Smith.

The appeals court may not grant the appeal, as it is filed outside the normal time frame to file appeals. Phillips was in jail during that time and Joltin failed to file an appeal, so the court may allow an exception.

�If the appeals court overturns the conviction, it�s done,� said Smith. �If it doesn�t grant an appeal, we will move to try the case on the evidence.�

Barnabee said if the city of Warren has nothing on Phillips, they have no defense in the federal case.

Barnabee noted that the hearing was held in chambers, although the courtroom was not in use at the time.

�When they convicted Phillips of crimes that didn�t exist, it was in open court and very public,� said Barnabee. �But now that the city is on the defensive, they hold the proceedings out of the public eye.�

Phillips� attorneys will report to Townley the status of their appeal of the second conviction on January 28. If the court denies the appeal, the remaining 60day suspended sentence will be back in force.

Group formed to win black support for marriage equality

by Anthony Glassman

Washington, D.C.--The battle to enlist the support of the African-American community for same-sex marriage began on December 8, as the National Black Justice Coalition introduced themselves at a National Press Club conference.

The self-described �ad hoc consortium of black lesbian, gay, bisexual and transgender community leaders� is comprised of some of the best-known African-American LGBT leaders, including author, attorney and former Clinton assistant Keith Boykin; Southerners on New Ground co-founder Mandy Carter; the Human Rights Campaign�s Donna Payne; Cambridge, Mass. council member Ken Reeves and others.

The group announced that luminaries like Coretta Scott King, Rep. John Lewis, presidential candidates Carol Moseley Braun and Rev. Al Sharpton and entertainer Whoopi Goldberg have already expressed their support for the group and its efforts. The coalition will hold future press conferences to announce other prominent black leaders as they lend their support.

�I love this. This is great,� said Jon Everett, interim executive director of BlackOut Unlimited, Ohio�s largest organization for LGBT African-Americans. �I think it is a scary time, and for too long we have given the religious right a pass because of religion. It�s not like the church doesn�t have a history of misinterpreting the Bible. For too long we�ve let them hide under the cloak of the Bible.�

Another goal is to raise and spend $100,000 on a national advertising campaign targeting the African-American community and launching a web site to counter right-wing propaganda.

�The right-wing fired the first shots in this battle, but today we fire back,� Payne said. �We will not allow the out-of-touch radical right to divide the black community on this issue.�

�I really feel that when a constitutional amendment is proposed to discriminate against a group of people, it is absolutely appalling,� Everett said of that opening salvo, �especially when we�re going around the world trying to champion democracy and freedom.�

Also present at the press conference were Alicia Toby and Saundra Heath, a lesbian couple from New Jersey, and Dr. Alvin Williams and Nigel Simon, a gay male couple from Washington, D.C.

Simon and Williams spoke about the vast number of benefits denied them and their son, despite Williams being a veteran. Also, since Simon is from Trinidad and Tobago, he could be forced to leave the country, possibly without his child, if something happened to Williams.

In a 2000 interview with the Gay People�s Chronicle, Boykin noted, �I think the black church has a long tradition of progressive activism and liberation theology that predates the modern movement. But when it comes to issues of homophobia, the black church still needs a lot of education in many instances and many places. Not everywhere, because there are some very open-minded and progressive-thinking African-American church congregations.�

The National Black Justice Coalition also pledged to �engage all major national black political leaders and civil rights leaders and many of the nation�s black religious leaders.�

The fight over same-sex marriage has created strange bedfellows, with some black clergy aligning themselves with traditionally racist elements in the religious right.

Everett also questioned the sincerity and logic of protecting the �sanctity of marriage.�

�What is this �sanctity of marriage?� � he asked. �In Las Vegas, an 85-year-old man and an 18-year-old stripper can get married five minutes after they meet by an Elvis impersonator. Should we have a constitutional amendment against that?�

�This country has a history of violent discrimination against blacks, against Latinos, against women, against interracial couples, and here�s another instance,� he concluded. �Thank God the same-gender-loving community is coming together with the heterosexual community. We fought together in the civil rights movement, and now we need help.�

Brassy babe

Bette Midler returns with a new
album and two Ohio tour stops

by Kaizaad Kotwal

The Divine Miss M is coming back to Ohio for two stops on her �Kiss My Brass� tour, playing Columbus on December 13 and Cleveland on January 5.

Bette Midler recently released her latest album Bette Midler Sings the Rosemary Clooney Songbook. Both Midler and Clooney have developed sizeable gay followings over the decades of their performing.

While the concert will feature numbers from this album, the show will be a typical Midler extravaganza--big show numbers, a whole new set of dancing and singing Harlettes, and bawdy, savvy and political banter scripted by gay comedian and performer Bruce Vilanch.

The newest album also reunites Bette Midler with her original piano accompanist and musical director, Barry Manilow, who produced her first two breakthrough albums, The Divine Ms. M (1972) and Bette Midler (1973). Manilow was Midler�s pianist when they both got their start playing at New York City�s gay Continental Baths in 1970.

Midler�s latest CD pays tribute to one of America�s great women of traditional pop and vocal jazz, who passed away on June 29, 2002.

On the notes for the album Midler writes, �I have loved Rosemary Clooney for as long as I can remember.�

�She possessed one of the great American voices of the last century, full of warmth, sincerity and truth,� Midler continues. �Her intonation was impeccable, she never sang a false note . . . she radiated intelligence and good humor, and boy, could she swing!�

In the same notes, Manilow writes, �When I was thinking about who could pay tribute to--and at the same time, reinvent these splendid songs, which Rosemary first introduced to the world--Bette was my first . . . and only choice. We had a ball, just like the old days. Better than the old days! I�m so thankful that she agreed to do it.�

Midler has always acknowledged the huge gay fan base she has kept through the decades since the Continental, even titling a 1998 album Bathhouse Betty. Recently, on the Jay Leno show, she joked that she knew Prince Charles wasn�t gay because she hadn�t seen him at any of her shows.

Gay or not, listeners will love Midler�s latest album, which includes Clooney classics like �You�ll Never Know,� �This Ole House,� �On a Slow Boat to China,� a duet with Manilow, �Hey There,� �Tenderly,� �Come On-a My House,� �Mambo Italiano,� �Sisters,� a duet with Linda Ronstadt, �Memories of You,� �In The Cool, Cool, Cool of the Evening� and �White Christmas.�

Midler has lost not one ounce of her musical abilities over the years. She simply gets better with age. In this most recent album not only does she show an amazing emotional depth, harkening back to her early success with The Rose, but she also displays a flair for subtle phrasing and comedic nuances. Midler, unlike any other performer of her generation, always embellishes her songs with sincerity and such joie de vivre that her music is always infectious. This album is no exception.

Ohio fans will have two opportunities to catch her divinely infectious verve and vitality live in Columbus on December 13 at the Nationwide Arena and in Cleveland on January 5 at the Gund Arena.