by Eric Resnick

Middletown, Ohio--State Rep. Thomas Brinkman was back in court this week, in his attempt to stop Miami University from giving health insurance to the domestic partners of its employees.

Brinkman, of Cincinnati, sued the school in 2005, saying the benefits violate Ohio?s constitutional ban on same-sex marriage and recognition of any couple outside of marriage.

Butler County Judge Charles L. Pater dismissed the case last November, saying that Brinkman has no standing as a taxpayer and cannot sue.

Brinkman appealed this to the Twelfth Ohio District Court of Appeals, where a three-judge panel heard the issue on July 2.

Neither court has considered the benefits themselves, though Pater concluded that ?Arguably, Brinkman is correct, but he lacks the requisite, adverse legal interest in the dispute.?

Pater is the same conservative judge who tried to deny the same last name to a lesbian couple in 1999, citing ?natural law? and ?divine edict.? That decision was overturned in 2002 by the Ohio Supreme Court in a case that now defines proper name changes.

The Miami case is being closely watched by the four other state universities that offer domestic partner benefits: Ohio University, Ohio State University, Cleveland State and Youngstown State.

It is a case that will help define the scope and effect of the 2004 marriage ban amendment as the courts interpret it.

Brinkman is represented by attorneys David Langdon and Jeffrey Shafer, who drafted the amendment.

Appealing Brinkman?s case instead of finding another plaintiff or using a writ of mandamus to compel the university to stop the benefits may be part of a broader legal strategy to make it easier to bring taxpayer actions. Doing that would give LGBT rights opponents more opportunity to use the amendment to deny LGBT families? rights.

Langdon still represents the amendment?s proponents, Citizens for Community Values of Sharonville. Shafer now works for the anti-gay Alliance Defense Fund in their Washington, D.C. office. ADF is paying Brinkman?s legal costs in this case.

Langdon has attempted to use taxpayer actions to block LGBT rights legislation in the past, usually with difficulty proving that his plaintiffs have standing.

Ohio courts have made it difficult to bring taxpayer actions, so that governments aren?t challenged on every line of the budget by citizens who disagree with this or that expenditure.

Courts have generally held that taxpayer actions can only be brought by a plaintiff who suffers ?an injury different in character or degree than that suffered by the general public,? which is difficult to prove.

The U.S. Supreme Court has carved out an exception to that, making taxpayer actions easier to bring when the case involves the ?establishment clause? of the U.S. Constitution separating church and state. That exception was discussed by the 12th District court, but there is agreement that it does not apply in this case.

Langdon denies this as a motive for the appeal, and Shafer said after the hearing that they were just trying to get the current law enforced for their client.

Langdon and Shafer relied on a 1954 Ohio Supreme Court case, Masterson v. Ohio State Racing Commission, and two later appellate court rulings based on it to argue that ?no other requirement? is ?needed to prove that the taxpayer has suffered damages from the allegedly unlawful expenditure.?

?The taxpayer?s damages are presumed, by virtue of the fact that the taxpayer is a contributor to the fund being challenged,? wrote Langdon in their brief.

Arguably, none of the existing taxpayer action cases liberalize its use as much as Brinkman and Langdon are proposing.

Miami University is represented by the Ohio attorney general, who has hired Kathleen M. Trafford of the firm Porter Wright Morris and Arthur as outside counsel.

Two lesbian couples who would be adversely affected if the benefits were halted were allowed to join the suit on the side of Miami University. They are represented by Cincinnati attorneys Jennifer Branch and Alphonse Gerhardstein, and Lambda Legal Defense and Education Fund.

Trafford and Lambda?s James P. Madigan appeared in the courtroom for the hearing with Langdon and Shafer. Shafer and Madigan presented the arguments before Judges H.J. Bressler, James I. Walsh, and James A. Brogan, who was visiting from the Second District. Bressler presided over the hearing.

Before arguments started, the court ruled on two procedural motions related to Madigan?s ability to appear.

After statements from both sides, the court allowed Madigan, who is not an Ohio attorney, to be admitted to the case for this occasion and for his briefs to be accepted by the court over Brinkman?s prior objections.

Each side had 15 minutes of questioning.

Brogan asked Shafer if it is his understanding that a taxpayer has standing any time he disagrees with an expenditure. Shafer said it was.

Brogan said the case might be stronger if Brinkman?s son or daughter, who attend Miami, had filed the suit instead of him.

?You?re not required to pay tuition,? Brogan said.

Shafer disagreed. ?I think the taxpayer is sufficient,? he said. ?The critical point is the contribution.?

Madigan told the court that the university has ?many separate sources of revenue, but one checking account? in an attempt to clear up how Miami is paying for the domestic partner benefits.

The university claims the benefits are funded by private, unrestricted contributions. Brinkman argues that there are also administrative costs that come from the general fund, which contains tax money.

Madigan told Bressler that Brinkman?s interpretation of taxpayer standing ?would turn the courts into a complaint bureau.?

?If not a taxpayer, then who could come into court to say this [benefit] violates the constitution?? asked Brogan.

Madigan replied, ?A mandamus action would be more appropriate, but that?s for a later court to decide. There is no underlying mechanism to bring this case, which is why [Langdon and Shafer] are grasping at bits and pieces of Ohio law.?

During his rebuttal, Shafer said denying Brinkman standing is a departure from case law.

Shafer said the trial court record documents that the university assumed the obligation of paying the premiums, and that not all was through private funds. That Brinkman contributed to the general fund through payment of Ohio taxes is all that is needed to give rise to standing.

A decision is due within six months.