December 3, 2004

Registry foes say city appeals to emotion in its court case

by Eric Resnick

Cleveland--Opponents of the domestic partner registry in Cleveland Heights say the city is using ?non-rational emotive considerations? instead of constitutional law to defend the registry on appeal.

A judge has already ruled that the registry is constitutional.

This case and another one promised by registry opponents will be the first court tests of the new Ohio constitutional amendment created by Issue 1?s passage. It is unknown if the measure?s second sentence, which prohibits anything that ?intends to approximate the design, qualities, significance or effect of marriage,? would affect the registry.

In their final brief filed November 23 to the Eighth Ohio District Court of Appeals, Cleveland Heights council member Jimmie Hicks, Jr. and former state school board member Charles Byrne charge that the city is presenting an ?erroneous analytical framework? that ?wanders from the arena of relevance.?

The suit, first filed in February, is being funded on Hicks? and Byrne?s behalf by the anti-gay Citizens for Community Values of Sharonville, a Cincinnati suburb.

CCV?s attorney David Langdon represents the pair, who are trying to overturn a May 28 ruling by Cuyahoga County Common Pleas Judge Robert T. Glickman that upheld the registry.? Glickman said it doesn?t violate Ohio?s home rule law or the constitution because it doesn?t confer any of the benefits of marriage, as Hicks and Byrne allege.

The city?s strategy for the appeal has been to agree with Glickman?s decision, which, if upheld by the appeals court, creates a hurdle for a separate suit based on the new constitutional amendment. Such a suit has been promised by Langdon in court filings.

A challenge under the new amendment would rely on convincing a court that the registry actually does confer benefits.

?Because the city has determined to ignore the clear constitutional issue . . . and instead proceeds on the erroneous supposition that a municipal operation is constitutional simply if it advances someone?s perception of ?public welfare,? the city dedicates page after page of its brief to expounding how the ordinance makes certain people happy,? wrote Langdon.

?Similarly, the fact that a resident wants to have the city?s recognition of his or her relationship, for whatever reason, is not a factor that overcomes constitutional restrictions,? Langdon continued.

The registry was the first of its kind created by voter initiative in 2003. To date, 116 couples have registered. About 60 similar registries exist across the nation, created by city councils and other legislators.

The court?s staff attorneys are currently screening the case. The three-judge panel that will decide it has not yet been chosen, nor has a date for oral argument.

This case and the promised new suit against the registry are expected to be decided ultimately by the Ohio Supreme Court.