July 22, 2005

Appeals court upholds Cleveland Heights partner registry

by Eric Resnick

Cleveland--The Eighth Ohio District Court of Appeals on July 14 agreed with a lower court?s decision that the Cleveland Heights domestic partner registry is constitutional.

In a unanimous opinion, the three-judge panel agreed that the registry is ?an act of self-governance.?

The court ruled against a claim by Cleveland Heights council member Jimmie Hicks, Jr. that the city had overreached its municipal powers when its voters enacted the registry in 2003.

Writing on behalf of the panel, Judge Sean C. Gallagher found the registry ?lawful,? and though it applies to domestic partners, ?we could find no distinction had the registry pertained to other citizen groups, such as war veterans.? The panel also included judges Frank D. Celebrezze and Mary Eileen Kilbane.

The registry is the only one of about 60 nationwide created by a ballot initiative. It allows domestic partners, same-sex and opposite-sex, both residents and non-residents of Cleveland Heights, to register with the city for a fee. The registry confers no benefits, though it can be used to document relationships for the purpose of obtaining private-sector benefits.

About 120 couples have registered since the measure took effect early last year.

Hicks sued the city in an attempt to block the registry from opening, and former state school board member Charlie Byrne was later added as a plaintiff.

The pair are represented by Cincinnati attorney David Langdon, who represents many anti-gay interests in Ohio. The Christian political interest group Alliance Defense Fund of Scottsdale, Arizona has funded the suit on their behalf.

Hicks is currently a candidate for re-election to city council.

The registry was first found constitutional in May, 2004 by Cuyahoga County Common Pleas Judge Robert Glickman, who said it ?does not create any result, either within the city or outside its territory, other than the mere existence of names on a list.?

Hicks and Byrne objected, saying that Glickman and the city used ?non-rational emotive considerations? and ?erroneous analytical framework? that ?wanders from the arena of relevance? in coming to their conclusions.

They also suggested that the so-called ?defense of marriage act? passed by the Ohio legislature in 2003 also invalidates the registry.

They appealed to the Eighth District in June, 2004 and the case was heard in March.

?We agree with the analysis of [Glickman],? wrote Gallagher in the brief opinion, which outlines the home rule legal framework and says the registry follows it.

The court also ordered Hicks and Byrne to pay $93 in court costs. Each side must pay their own attorney fees.

Hicks and Byrne could appeal the decision to the Ohio Supreme Court, but unlike the Eighth District, it can refuse to hear the matter. An appeal there must be filed in 45 days.

Hicks is on vacation and could not be reached. Langdon is traveling and also could not be reached, and their further intentions are not known.

New suit under ban amendment

However, Langdon has said in court papers that he will challenge the registry in a new suit under the Ohio Constitution?s marriage ban amendment, passed last year as Issue 1. He told the court that it has stronger language against Ohio cities recognizing relationships outside marriage than the ?defense of marriage act.?

Assistant Cleveland Heights law director William Hanna said the city is happy with the decision and believes court got it right.

He was also pleased with the court?s discussion of the city?s authority to have the registry.

?The court of appeals wrote a rich opinion in terms of home rule,? said Hanna, who is openly gay.

He added he was pleased that the court agreed with Glickman that the registry doesn?t confer any benefits and doesn?t create any special legal status for unmarried couples. He said that ?dooms? any further appeals.

On Langdon?s vow of a new suit under the marriage ban amendment, Hanna said the lack of a special legal status ?doesn?t foreclose it,? but it ?doesn?t help them.?

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