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GAY PEOPLE'S CHRONICLE March 12, 2010

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www.GayPeoplesChronicle.com

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 antigay 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. a 2007 opinion, 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.'

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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 re-

jected 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 exer-

cise 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.

Census to count married gay couples for first time

by Eric Resnick

For the first time, the U.S. Census will count married same-sex couples, and give all couples the chance to be counted as married, whether they have a valid marriage license or not.

Advocates say the count has a big impact on LGBT economic security and political clout, and that extra effort should be made to ensure that couples, especially, are counted.

Same-sex couples can be counted as either spouses or unmarried partners, and the census will not question any same-sex couple identifying as married, even if they live in a state where marriage is not recognized.

A marriage license is not necessary, says Our Families Count, a group formed to promote LGBT participation in the census. If the couple considers themselves married, the census will record it that way.

The census form asks you to list the person who owns or rents the house as "Person 1" and

then indicate how everyone else in the household is related to "Person 1." The second household member may be described as “husband," "wife," or "unmarried partner," at the discretion of the person filling out the form.

The census is also indifferent to immigration status. Everyone living in the home should be counted on the form.

The Constitution requires that every person in the nation be counted every ten years, to set the number of representatives that each state gets in the U.S. House. The census is also used to apportion state and local districts, and guide planners on where tax money should be spent and infrastructure located.

In 2000, the census counted same-sex couples for the first time, but there was no such thing as same-sex marriage then. Now, five states and the District of Columbia have full marriage, as do seven other nations including Canada.

The census still does not count sexual

orientation or gender identity, so unpartnered people are not counted as LGBT. However, the counting of couples gives demographers a clearer picture of how many LGBT Americans there are.

The "unmarried partner" option first appeared in 1990, primarily to find out how many unmarried heterosexual couples were living together. While same-sex partners could also mark this box, the option wasn't publicized and the information was only released in data for researchers, not summaries for the media.

In 2000, the option was publicized and samesex couples were part of the official counts released to the media.

While the 1990 count reported that 24 of Ohio's 88 counties had no lesbian and gay couples at all, the 2000 one showed every Ohio county had gay or lesbian couples, even the smallest county had 15. It also quadrupled the number of same-sex couples in the state.

The 2000 census proved that same-sex couples live in every county in the nation.

Still, the number of couples in the 2000 count is said to have been too low, based on other statistical models.

The 2010 census seeks to correct that through outreach to the LGBT community.

LGBT advocates are also promoting census participation and encouraging same-sex couples to be counted. Couples are encouraged to describe their relationship on the census form in the same way as they describe themselves to others.

The census ensures confidentiality. No individual census data are shared with the Immigration and Naturalization Service or any other government agency, or used for law enforcement purposes. By law, only the broad statistical numbers are published.

Census forms will begin arriving by mail in mid-March. Households not returning the form will be visited by a census taker.

Additional information on LGBT participation in the 2010 Census can be found at www.ourfamiliescount.org.

Senators urge FDA to end ban on gay blood donation

by Anthony Glassman

Washington, D.C.-Pressure is increasing on the Food and Drug Administration to lift a ban on blood donations from men who have had sex with men.

The controls were put in place in 1983, when AIDS was little understood and testing for HIV was all but nonexistent. What testing there was could produce false negatives for up to six months on people recently infected with HIV.

Now, however, donated blood is tested using a different method that can detect the

presence of HIV within 12 days of infection. Despite this miniscule window, the FDA has maintained its ban on blood donations from men who have had sex with another man, even once, since 1977.

A letter from 18 senators to FDA commissioner Margaret Hamburg urged her to end the ban, which stymies efforts to build up the nation's supply of donated blood.

"With hospitals and emergency rooms across the country in constant and urgent need of blood products, we believe certain blood donor deferral policies should be reviewed and appropriately modified and mod-

ernized while ensuring the blood supply meets the highest possible standards that we all expect in America," the letter states.

It was signed by Democratic senators including Sherrod Brown of Ohio, former presidential candidate John Kerry, New York's Kirstin Gillibrand, Dick Durban and Roland Burris of Illinois, Al Franken of Minnesota, Wisconsin's Mark Feingold and Michigan's Carl Levin.

The letter notes that the Red Cross and other organizations involved in blood-banking called the ban "medically and scientifically unwarranted" in a 2006 FDA workshop.

The senators also note the window period in the testing, but point out that a similar window exists in testing for hepatitis B and C, so a deferral period is used before the blood can be transfused, protecting recipients.

"However, there is a clear and unscientific double standard embedded in the current deferral rules for potential exposure to HIV,"

it states.

It goes on to note that a person who engages in heterosexual contact with a partner with HIV cannot donate for a year, but a man who was in a monogamous relationship with Continued on page 10