National groups weigh in on Cleveland registry suit

by Eric Resnick

Cleveland--As state and national groups join in, it looks like the challenge to Cleveland?s domestic partner registry is really about the anti-gay side wanting another chance to broaden the scope of Ohio?s marriage ban amendment.

The American Civil Liberties Union of Ohio and Lambda Legal have weighed in as friends of the court on the side of the registry.

City council passed the measure, almost identical to ones in Cleveland Heights and Toledo, in late 2008. It took effect last May after attempts to force a referendum failed to get off the ground.

In August, a group calling itself Cleveland Taxpayers for the Ohio Constitution and city resident Dorothy McGuire sued, claiming it violates the marriage ban amendment passed in 2004. They are represented by attorney David Langdon of Cincinnati--who wrote the amendment--and the anti-gay Alliance Defense Fund of Scottsdale, Arizona.

The suit made essentially the same arguments as a 2004 one against the Cleveland Heights registry by former councilor Jimmie Hicks. Langdon and ADF represented Hicks, also.

Hicks lost, and the Heights registry was ruled constitutional and an appropriate use of local governance.

Common Pleas Judge Joseph D. Russo dismissed the Cleveland suit in November. Langdon appealed this to the Eighth District Ohio Court of Appeals in January.

The case is ultimately headed for the Ohio Supreme Court in an attempt to make the justices widen their interpretation of the marriage ban?s reach. In a 2007 opinion, the court said it banned only marriage and civil union, leaving domestic partnerships and other relationships unaffected.

The court ruled on the measure?s second sentence, which reads: ?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.?

In the 2007 case, State v. Carswell, the high court held that domestic violence laws still applied to unmarried couples under the ban amendment.

?The second sentence of the amendment means the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage--a marriage substitute,? wrote Chief Justice Thomas Moyer.

The key word is all of the attributes, not some of them, as Langdon now wants the lower court to rule.

Moyer reinforced this a couple of paragraphs later, saying, ?It is clear that the purpose of Issue 1 [the amendment] was to prevent the state, either through legislative, executive, or judicial action, from creating or recognizing a legal status deemed to be the equivalent of a marriage of a man and a woman.?

Moyer?s example of what the court considers an equivalent is a civil union.

A year later, the high court affirmed its position when it allowed a Tenth District child custody suit to stand, in a case also attempting to broaden the amendment?s second sentence.

Langdon and the anti-gay groups he often represents loathe the Carswell decision. These groups include Citizens for Community Values of suburban Cincinnati, which got the amendment passed.

Langdon now argues that the Supreme Court got Carswell wrong or, if Carswell is allowed to stand, calls the city of Cleveland?s application of Moyer?s opinion ?overly narrow.?

Also embedded in Langdon?s brief is the reason why he never bothered to file a suit against Toledo?s registry.

One of the decisions rejected by the Ohio Supreme Court in deciding Carswell was the Eighth District?s State v. Burk. The Eighth District is Cuyahoga County.

In Burk, the appeals court agreed with Common Pleas Judge Stuart Friedman that Ohio?s domestic violence law creates a status for unmarried couples that runs afoul of the amendment.

The Sixth District, which includes Toledo, has no such opinion.

Langdon is now asking the Eighth District to use its logic in Burk as the basis for finding that the registry violates the amendment.

Challenging the city?s assertion that Carswell means the registry is constitutional, Langdon argues, ?This precedent [Carswell], though it may be ambiguous at certain points, does not diminish the amendment?s clear prohibition of the kind of relationship the city has created and which it continues to recognize through its registry.?

Taking issue with Moyer, Langdon argues, ?the plain language of the marriage amendment forbids the legal recognition of relationships that intend to approximate any one of four enumerated aspects of marriage: its design, its qualities, its significance, or its effect.?

Langdon argues that because couples in the Cleveland registry have to meet certain requirements, such as common residence and responsibility for each other?s welfare, that it creates a legal status for the domestic partner relationship.

This argument has been unanimously rejected by previous courts, including the Eighth District in Hicks, the Cleveland Heights case.

However, Langdon drills down on one word in Cleveland?s ordinance.

?[The couples] are required to file a declaration with the City not merely to declare that they are domestic partners, but, as the ordinance says, in order to ?become? domestic partners.?

Langdon continues, ?If the individuals meet the statutory criteria and follow the statutory steps, they become domestic partners; if they fail to meet these requirements or to follow the statutory requirements, they do not become domestic partners.?

?The relationship recognized by the ordinance, therefore, is also a creation of that ordinance. Thus, through its ordinance, the city has created and is recognizing ?domestic partnerships? as having a distinct legal status,? Langdon concludes.

In Hicks, both the trial court and the Eighth District agreed that the registry was just a list of names maintained by the city of Cleveland Heights. It was also deemed to be within the city?s powers because it has no effect on other political subdivisions.

Langdon says Cleveland?s is different.

?Unlike this case, Hicks was decided on a fully developed factual record,? Langdon wrote. ?Based on that record, this court concluded that the city of Cleveland Heights? domestic partner registry had no effect outside the city.?

?But in this case,? Langdon argues, ?the only evidence in the record is found in the allegations in the complaint . . .?

Langdon wrote that complaint. Nonetheless, he asserts that Cleveland?s registry has ?at the very least, the potential for the [Cleveland] ordinance to have extraterritorial effect.?

Through Assistant Law Director Michael Cosgrove, Cleveland refutes that claim by restating the court?s opinion in Hicks.

?In an attempt to argue that Cleveland?s registry has extraterritorial effect where Cleveland Heights? registry ordinance did not, appellants misleadingly attempt to create a distinction between Cleveland Heights? registry . . . [and Cleveland?s] that does not exist.?

In his relatively concise brief, Cosgrove deals with Langdon?s assertions about what the amendment?s second sentence means by noting Carswell.

?While appellants portray the second sentence of [the amendment] as a model of clarity, the Supreme Court of Ohio nevertheless found it necessary to expound upon its meaning in State v. Carswell,? Cosgrove asserts, ?an exercise the court would not have pursued had the language of the marriage amendment been unambiguous.?

Cosgrove continues, ?The language of the ordinance makes clear that participation in the registry does not give either domestic partner the ?right to make a legal claim or seek judicial enforcement of a duty or right.? Consequently, the ordinance creates no legal status under the established Carswell definition, and the existence of the registry does not violate the marriage amendment.?

Cosgrove continues that even if the registry did create some legal status, that status does not meet the standard that the Ohio Supreme Court required in Carswell because, ?Cleveland?s registry does not impart the requisite rights, duties, and liabilities of marriage to domestic partners who choose to place their names on the registry.?

?Appellants confusingly maintain that the marriage amendment is clear, yet assert that the Ohio Supreme Court?s decision in Carswell is ambiguous,? Cosgrove wrote. ?But while the Supreme Court?s opinion in Carswell may be inconvenient for appellants, it is not ambiguous.?

In its brief in support of the city through attorney Carrie Davis, the ACLU argues that Langdon ?misstates the purpose and effect of the registry.?

?The registry is, quite simply, a piece of paper,? Davis wrote. ?It bestows no legal rights or status whatsoever. In fact, the paper is utterly meaningless unless some private entity chooses to accord meaning to it. This null piece of paper is nothing like marriage.?

Lambda Legal is working with Cleveland attorney Melissa Majkut of Porter, Wright, Morris and Arthur.

Majkut argues that the Ohio Supreme Court is clear in what it meant in Carswell, adding that marriage brings federal benefits as well as state and local ramifications.

?The registry, by contrast, bears almost none of the attributes of marriage,? Majkut argues.

?Unlike marriage, which is marked by solemnization . . . and requires the state?s permission and a lengthy judicial proceeding to terminate, those who have registered with the city can terminate their domestic partnership at will.?

?Domestic partnerships are not accorded equal respect by society, and they share in none of marriage?s history, traditions or celebrations,? Majkut continues.

?Were a married couple told that they were no longer married but instead told that they were ?registered domestic partners,? they unquestionably would feel that they had lost something precious,? Majkut concludes.

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