Ohio high court bars incorporation by gays

By Brin. Usher

Plain Dealer Bureau

COLUMBUS The Ohio Supreme Court split 4-3 yesterday in denying the right of an avowed homosexual group. from Cincinnati to incorporate under Ohio law.

The majority upheld Secretary of State Ted W. Brown's decision to refuse incorporating papers to the Greater Cincinnati Gay Society because its purpose "is contrary to public poli-

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Chief Justice C. William O'Neill filed a silent dissent.

But Justice Leonard J. ert Duggan applied for arti-

Stern filed a strong dissenting opinion charging that homosexuality is no longer against state public policy. and the secretary of state's office cannot determine such public policy.

Justice William B. Brown concurred in Stern's dissent. The majority included Justices Thomas M. Herbert, J. J. P. Corrigan, Frank D Celebrezze and Paul W. Brown.

Three members of the homosexual group, Powell Grant, Jack Busse and Rob-

cles of incorporation at the secretary of state's office Aug. 9, 1972.

The secretary refused, citing state laws against homosexual acts and against incorporating groups with unlawful purposes.

However, in December 1972 the Ohio Legislature passed a new criminal code which abolished the ban on homosexual acts among consenting adults.

The majority opinion yesterday: took note of that statutory change but added: ""There is still reason for denying writ. We agree with the secretary of state the the promotion of homosex uality as a valid life-style is contrary to the public policy of the state."

However, Stern's dissent argued that the "public policy" must be grounded in either the state Constitution, state laws, or judicial decisions.

"The Ohio Constitution · displays no preference for sexual life-style," Stern wrote. "No distinction is drawn (in the new law) between heterosexual and homosexual activities.'

He added that no justice has even used the term "homosexuality" before in court decisions.

Stern also added that the

majority opinion "is most disturbing" because it implies the secretary of state is a "vehicle for formulating and implementting public policy.'

The secretary of state's office, hewrote, is neither an "original spokesman nor interpreter of state public policy."

He concluded the court is bound to allow the "association for the purpose of fostering of acceptance their freely chosen lifestyle."

In a second controversial ruling, the Associated Press reported that the court reaffirmed the constitutionality of a Cincinnati disorderly conduct 0 ordinance after having an earlier decision rejected by the U.S. Supreme Court.

The disorderly conduct ordinance prohbits 'willful, boisterous, or insulting conduct with the intent to abuse or annoy other per-

sons.

In its original decision, the Ohio court affirmed the conviction of Steven N. Karlan of Cincinnati, ruling in part that he used "fighting words likely to provoke a retaliatory breach of the peace

The U.S. court reversed that decision, and remanded Karlan's case back to the state court for further consideration.

In its latest decision, split

4-3, the Ohio court said "the utterance of fighting words likely to provoke the average-person to an immediate retaliatory breach of the peace are not protected by the freedom of speech amendment.'

The majority decision said "the Cincinnati disorderly conduct ordinance, as authoritatively construed by this court, is not overbroad.

"".

Chief Justice O'Neill was among the dissenters who also include Justices Stern and William Brown. The majority opinion was signed by Justices Herbert, Corrigan, Celebrezze, and Paul Brown.

The court also ruled that citizens committed involuntarily to state institutions must be provided with counsel at their commitment hearings.

The unanimous decision upheld a similar finding of the Court of Appeals (9th District) on behalf of Harold Fisher and six other persons confined at Hawthornden State Hospital near Akron.

The court also permanently disbarred Toledo lawyer Kelsey D. Bartlett.

Bartlett was charged with mishandling the funds of a client in violation ofthe canon of professional ethics.