December 2, 2005

Flip-flop on benefits

Lawyer in suit against Miami University partner plans
said ban amendment doesn?t apply to them

by Eric Resnick

Hamilton, Ohio--A state lawmaker has sued Miami University, alleging that Ohio?s new constitutional marriage ban makes it illegal for the school to offer domestic partner benefits to its employees similar to those given to spouses.

But one of his lawyers, who co-wrote the amendment, said last year that it doesn?t.

State Rep. Thomas Brinkman, Jr. of Cincinnati filed the suit November 22 in Butler County Common Pleas Court as a private citizen and taxpayer.

His complaint says the university ?seeks to provide a legal status which approximates marriage to those in a relationship whose composition disallows it to qualify for a status as a marriage.?

Miami University created the benefits in July, 2004, with its president Jim Garland as their biggest champion. It is one of five state universities with them. The others are Ohio University, Ohio State University, Cleveland State and Youngstown State.

Brinkman wants the court to end Miami?s benefits and for the university to pay his costs in the suit.

The suit may be the most significant test so far of the amendment?s controversial second sentence, which says: ?This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.?

For Brinkman to prevail, the courts would need to rule that the benefits approximate marriage.

There are already a dozen or more suits in Ohio courts that claim the state domestic violence law no longer applies to unmarried couples because of the amendment. But they are still on appeal and have not answered the question of what ?approximates? marriage.

In those cases, prosecutors and gay equal rights advocates argue that only marriage approximates marriage, and that the amendment should be interpreted as narrowly as possible.

Anti-gay groups, including the ones that campaigned for the amendment, argue that it should be interpreted broadly to include nearly all relationships other than marriage between one man and one woman.

Arizona group is backing the suit

The suit names president Garland as a defendant along with the school?s board of trustees, all in their official capacities.

Brinkman is represented by the Alliance Defense Fund of Scottsdale, Arizona and the two attorneys who drafted the amendment, David Langdon and Jeffrey Shafer. At the time they wrote it, the two were law partners in Cincinnati.

Langdon is a familiar name in Ohio anti-gay lawsuits who shares the Sharonville address of Citizens for Community Values, which campaigned for the amendment. Shafer has since left to work in the Alliance Defense Fund?s Washington, D.C. office.

ADF funds litigation around the nation to deny equality to gay, lesbian, bisexual and transgender people, especially in marriage. It backed Cleveland Heights councilmember Jimmie Hicks this year in his unsuccessful suit against the city?s domestic partner registry.

Assisting Langdon and Shafer are Langdon?s new law partner Joshua Bolinger and ADF attorneys Benjamin Bull and Glen Lavy of Scottsdale.

Shafer is the lead attorney in the case and is being paid by ADF.

Langdon said ban won?t affect benefits

During the amendment campaign on October 3, 2004, Langdon told the Associated Press that the amendment?s second sentence would not rescind domestic partner benefits already offered by some public universities and cities, but it would stop others from doing so. At the time, Miami already offered them.

This statement was consistent with the amendment campaign?s official message to the secretary of state and the public:

?Issue 1 does not interfere in any way with government benefits granted to persons in non-marital homosexual relationships, so long as the government does not grant those benefits to such persons specifically for the reason that the relationship is one that seeks to imitate marriage.?

Shafer was asked what has changed to make the amendment now affect the benefits.

?I don?t know what [Langdon] was thinking about with regard to the context of what he told the Associated Press,? said Shafer.

Langdon could not be reached for comment.

Miami chosen because of location

Asked whether he approached ADF about the suit or they approached him, Brinkman described a mutual agreement that a suit needed to be filed and that he should be the plaintiff.

?I have known David Langdon for about ten years,? said Brinkman. ?We have meetings on issues, and things come up; those things happen and we decide who is to do what.?

Brinkman said Miami was chosen among the five state schools with the benefits because of money and location.

His son and daughter attend Miami, and it is 45 minutes from his home.

Shafer said, ?You have to start some place.?

According to Miami University spokesperson Richard Little, the school spends about $100,000 per year on the 33 or 34 domestic partners getting the benefits. This is 0.2% of Miami?s $50 million benefits budget.

But Brinkman objects to it, saying that the school charged his daughter $35 just for a course syllabus.

?That?s why I always vote against tuition caps,? said Brinkman. ?The schools always find ways to get more money anyway,? inferring that he believes the $100,000 could be better spent.

Plaintiff has long anti-gay history

Brinkman, a Republican, has a long history of anti-gay activism. He was one of the principal organizers of Equal Rights Not Special Rights, the 1993 committee that passed the anti-gay Article 12 of Cincinnati?s charter, repealed in 2004. He sued the city in 2003 in an attempt to block a hate crime law that included sexual orientation, and he was also a co-sponsor of the Ohio ?defense of marriage act.?

Brinkman also opposed fellow Republican Bob Taft?s 1998 gubernatorial run because Taft selected pro-choice, pro-gay Jennette Bradley as his running mate.

Brinkman earned national notoriety two years ago when he was the only Ohio House member to vote against the state?s ratification of the 14th Amendment, 135 years after it was added to the U.S. Constitution. The post-Civil War amendment guarantees equality under the law to all citizens.

These positions and others often put Brinkman outside the mainstream of the Republican Party, and caused Ohio party chair Robert Bennett to declare in 2002, ?Brinkman, in my opinion, is not a very intelligent human being.?

Brinkman is in his third House term and is not sure if he will run for re-election or for something else. He has also been eager to file lawsuits against the state as a legislator--a rare move.

?Leaders should lead on issues important to them,? said Brinkman.

Petro may have a political conflict

Ohio attorney general and Republican gubernatorial candidate Jim Petro is charged with defending the university in this suit.

In its defense, the university must either argue that the benefits don?t approximate marriage and thus are not affected by the amendment, or that the amendment itself is unconstitutional.

It is not yet known which argument will be chosen. Both Petro?s office and his gubernatorial campaign ignored numerous phone and e-mail requests for comment.

He has, however, according to Little, hired Columbus attorney Kathleen Trafford of the firm Porter, Wright, Morris and Arthur to lead the university?s defense. Trafford declined comment.

It will be Petro?s decision on how far the case gets appealed if the university loses. This could politically rub against his gubernatorial campaign, his running mate, and his new position on marriage ban amendments.

Though Attorney General Petro opposed the marriage ban amendment when it was on the ballot as Issue 1 last year, candidate Petro favors the federal version pushed by President Bush.

?Jim Petro has always believed that marriage is between a man and a woman,? says his campaign website. ?Jim is opposed to same-sex marriage and supports the president?s proposed constitutional amendment defining marriage as a union between a man and a woman.?

Running mate is Brinkman ally

Petro?s running mate is Hamilton County commissioner Phil Heimlich--a close personal and political ally of Brinkman.

Also an anti-gay activist, Heimlich and Brinkman have raised money and worked on each others? campaigns. They both have longstanding ties to Citizens for Community Values president Phil Burress, who is the source of most anti-gay activity in Ohio.

After endorsing Heimlich?s candidacy in a special congressional election earlier this year, Brinkman waited for his friend to join Petro?s ticket before getting in the race himself.

It is believed that Petro chose the social conservative Heimlich in order to be more competitive in the primary against Secretary of State Ken Blackwell, who is the favorite among Republican social conservatives.

Petro?s vigorous defense of the university, particularly if they want to have the amendment declared unconstitutional, could be used by Blackwell against him.

Equality Cincinnati president Gary Wright attacked the suit, saying, ?Regardless of the outcome of this suit, there is no alternative for repealing the ban on same-sex marriage that is now part of the Ohio Constitution.?

?While it is not what they intended,? said Wright, ?the people pursuing this suit are helping to show Ohioans what their real motives are and why this amendment is so wrong for everyone in this state. Their purpose is not to protect anyone?s marriage.?

The case has been assigned to Judge Charles L. Pater.

The university?s answer to the complaint is due December 20.

Shafer said he expects that with appeals, the case will likely take two years to conclude.

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