November 21, 2003

State must allow marriage, court rules

Massachusetts top court gives lawmakers
180 days to change law

�by Eric Resnick

Boston--In a landmark ruling on November 18, the Massachusetts Supreme Judicial Court struck down the state�s ban on same-sex marriages, saying that the state failed to �articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions.�

The ruling changed the definition of civil marriage in Massachusetts from the lawful union of one woman and one man to �the voluntary union of two persons as spouses, to the exclusion of all others.�

The court did not allow same-sex couples to marry immediately. Instead, it gave the state legislature 180 days to change the law to reflect the ruling.

Lawmakers are already considering marriage, civil union and domestic partner bills, but also have a constitutional amendment in the works that would undo the court�s ruling.

�We have recognized the long-standing statutory understanding, derived from the common law, that �marriage� means the lawful union of a woman and a man,� the court said in its ruling. �But that history cannot and does not foreclose the constitutional question� that this definition may violate the constitution.

The case, Goodridge v. Department of Public Health, was originally filed April 11, 2001, by Gay and Lesbian Advocates and Defenders of Boston on behalf of seven same-sex couples attempting to obtain Massachusetts marriage licenses.

The high court heard oral arguments on the case March 4.

There were 25 friend of the court briefs filed, including one against the couples by Cincinnati attorneys David Langdon and Jeffrey Shafer, who represent many anti-gay organizations in Ohio. Langdon is the author of the current Ohio �defense of marriage� bill.

The court�s ruling strongly rejected the state�s three main arguments that prohibiting same-sex marriage was necessary to provide a favorable setting for procreation, ensure the optimal setting for child rearing, and preserve scarce state and private financial resources.

Writing for the 4-3 majority, Chief Justice Margaret H. Marshall said it is �incompatible with the constitutional principles of respect for individual autonomy and equality under the law� when a person wishing to enter an �intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community�s most rewarding and cherished institutions.�

Joining Marshall in the majority were justices Roderick L. Ireland, Judith A. Cowin, and John M. Greaney, who also issued a separate, concurring opinion.

Dissenting were justices Francis X. Spina, Martha B. Sosman, and Robert J. Cordy.

Massachusetts justices are appointed until mandatory retirement at age 70. Six of the seven were appointed by Republican governors.

�The larger question,� wrote Marshall, �is whether . . . government action that bars same-sex couples from civil marriage constitutes a legitimate exercise of the State�s authority to regulate conduct . . . or whether this categorical marriage exclusion violates the Massachusetts Constitution.�

The court recognized that �hundreds of statutes� are related to marriage and marital benefits, and that the only access a couple has to those benefits is through a marriage license.

The court also considered the rights of children.

�The fact remains that marital children reap a measure of family stability and economic security based on their parents� legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children,� wrote Marshall.

�Protecting the welfare of children is a paramount state policy,� wrote Marshall. �Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. The �best interests of the child� standard does not turn on a parent�s sexual orientation.�

�Civil marriage is an evolving paradigm,� said the court. �Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries.�

�Alarms about the imminent erosion of the �natural� order of marriage were sounded over the demise of antimiscegenation laws, the expansion of the rights of married women, and the introduction of �no-fault� divorce,� said the court. �Marriage has survived all of these transformations, and we have no doubt that marriage will continue to be a vibrant and revered institution.�

Greaney�s concurring opinion may be stronger, as he suggested resolving the case �using traditional equal protection analysis� instead of the �rational basis� analysis used by the majority. Legally, equal protection is a higher standard to meet.

Greaney attacked the suggestion by anti-gay friends of the court that denying marriage to same-sex couples is not discriminatory because no one is denied marriage--to a person of the other sex.

�I find it disingenuous, at best, to suggest that such an individual�s right to marry has not been burdened at all, because he or she remains free to choose another partner, who is of the opposite sex,� he wrote.

The majority opinion also pointed out that �the right to marry means little if it does not include the right to marry the person of one's choice.�

The court ordered its judgment �stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.�

Attorney Gary Buseck of GLAD, who was co-counsel in the case with Mary Bonauto downplayed concerns about the delay.

�We don�t think it means much of anything,� he said.

Vermont�s high court, striking down that state�s same-sex marriage ban in 1999, also left it to the legislature to provide a remedy. Through a compromise brokered by then-governor and now presidential candidate Howard Dean, lawmakers created civil unions, a lesser status than civil marriage.

Bonauto was also lead counsel in the Vermont case.

�I don�t think they are giving an opportunity for anything other than marriage,� said Buseck. �The decision was all about the fundamental right of marriage, and the reformulation of the definition to mean two persons.�

By contrast, Vermont�s ruling referred to rights and benefits of marriage, but did not change the marriage statute itself.

The Massachusetts legislature is holding a constitutional convention on February 11 to consider an amendment to explicitly bar same-sex marriages. Because the court�s ruling was based on the state constitution, this amendment would nullify it.

Buseck said the court�s expected ruling and the legislature have been on a �parallel track� with the constitutional convention all along. He believes that the decision affects the constitution as it is currently, and that nothing the legislature does can trump that.

He noted that the amendment process takes at least three years, so it could not be changed until the first Tuesday of November, 2006. Meanwhile, couples can get marriage licenses after 180 days, unless the legislature sets an earlier date.

�If an amendment passes, it would moot the decision from that day forward,� said Buseck, �but nothing is going to stop marriage licenses from being granted from May 17, 2004 to that day in 2006.�

Massachusetts governor Mitt Romney, a Republican, immediately disagreed with the decision, saying he is going to do all he can to stop marriage licenses from going to same-sex couples, including supporting the proposed constitutional amendment.

�Over the next several months,� said Romney, �I will work with legislative leadership and other legislators and community leaders to see what kind of statute we can fashion which is consistent with the law.�

Buseck said because the court redefined common law, the only statute Romney can fashion is civil marriage, not a Vermont-like compromise.

�If Romney wants to be like George Wallace and call in the National Guard to stop same-sex couples at the Department of Public Health windows, I suppose he could,� said Buseck. �But I don�t see that happening.�

President Bush interrupted his state visit to Britain to condemn the court and speak in favor of a national constitutional amendment �to do what is legally necessary to defend the sanctity of marriage.�

Same-sex marriage is expected to be a wedge issue in the 2004 presidential campaign.

Response from the Democratic presidential candidates was lukewarm. Six of the presidential hopefuls, including front-runner Howard Dean, favor granting rights to gay and lesbian couples, but oppose expanding the definition of marriage.

Rep. Dennis Kucinich of Cleveland, former Illinois senator Carol Moseley Braun and Rev. Al Sharpton all favor opening marriage to same-sex couples.

Busceck said the 1996 federal DOMA law will still be there in 180 days to prevent the married couples from enjoying federal benefits such as Social Security benefits and the ability to file joint tax returns.

�But it will be a real-world situation then, and I am hopeful that Congress will ask �Does this make sense?�� he said.

Town hall charts course to civil marriage

by Kaizaad Kotwal

Columbus--When community leaders set November 18 as the day of a town hall meeting on civil marriage equality, they didn�t know that the Massachusetts Supreme Judicial Court would choose the same day to rule that the state must permit same-sex couples to marry.

Held in the main auditorium of the Fawcett Center on the campus of Ohio State University, the town hall meeting was moderated by Jane Scott of the Columbus Metropolitan Club, with five panelists from national, statewide, and local organizations.

�It�s ironic that I, a middle-aged, straight, white, Republican, Catholic woman� am moderating the session, Scott said, �but I also know that diversity is a gift we should treasure and we should not let it tear us apart.�

Scott said that this gathering comes after a line of �historic victories for GLBT folk.� She reminded the audience of the June 10 decision of Ontario�s highest court, where same sex couples were immediately allowed to marry, the June 26 Lawrence v. Texas Supreme Court ruling that struck down state sodomy laws, and �today, the day of the Massachusetts decision.�

She turned the meeting over to the panelists by warning of an anti-gay backlash, a sentiment echoed during the course of the meeting.

Tim Rusch of the Gay and Lesbian Alliance Against Defamation started off by asking the audience to examine the way the media covers the issue of civil unions and same-sex marriage. He said that citizens and politicians from anti-gay groups had been using the media to tout their opposition to same sex unions.

He quoted Focus on the Family leader James Dobson, who said on CNN�s Larry King Live that such unions would �destroy families, destroy America and Western civilization.� Rusch told the audience that opponents of the legalization of interracial marriage in the 1960s had used similar arguments.

�Write letters telling your side of the story, monitor radio which can often be a free-for-all for homophobia, respond directly to one-sided stories,� Rusch said. �Thank the media when they do get it right, and continue to build and maintain a relationship with the media. Words and images do matter.�

Rusch also believes that the media needed to be told about straight allies.

�People of color need to be represented too,� he said, �because far too often the ant-gay industry uses race as a wedge.�

Ken Chloe with the American Civil Liberties Union�s Gay and Lesbian Rights Project started by saying, to thunderous applause, �The remarks I carefully prepared for you last night have now been overtaken by today�s events.�

Chloe acknowledged, �Where we are today is due to the heroic work of communities like the one in Columbus, so that we can get to have a national dialogue about civil marriages.�

Chloe, a lawyer, urged those present to read the entire Massachusetts decision, especially for the �passages that are extraordinarily moving.� He said that the ruling was particularly important for two reasons. Firstly �because the court made clear the lesbian and gay couples are as happy and loving as any other couples� and that �when same sex couples are denied the ability to marry, there are real and direct harms that follow.�

�Bring forward stories of actual and substantial harm because people cannot get married. Put a face on it,� he recommended.

Reverend Judy Hoffhine of the Broad Street Presbyterian Church began her remarks by saying, �Not all churches are negative� towards gays, and �I believe in the separation of church and state.�

She added, �You don�t have to choose between being gay and being Christian, and I am only speaking for myself when I say that for any hurt that any church has put on you I am very sad. I wish I could speak for the whole church.�

�Through any lifelong union God will be better served, that love will be generated, and that God will be more revealed by that commitment to marriage,� she continued.

�If there is a true separation of church and state and if we want to be purists, then we should not be performing any duties for the state,� she noted, referring to the fact that clergy solemnize heterosexual marriages which the state does recognize.

The fourth speaker on the panel was Cleveland attorney Tim Downing, with the state GLBT lobby group Ohioans for Growth and Equality. The groups has a lobbyist at the Statehouse talking with legislators about these issues.

�They�re afraid,� Downing said of lawmakers, �that their ideas of religious marriage will be taken away if two same-sex people have a civil union.�

Downing spoke of House Bill 272 currently in the Ohio legislature, which is being called a �Defense of Marriage Act.� �What it really is,� he said, �is a �Denial of Benefits Act,� and we need to call it what it is, DOBA.�

Downing was also very clear that acts like DOMA are not simply about banning same-sex civil marriages, but also could end �all the employment benefits that we currently enjoy� from progressive employers. If DOMA passes, Downing said, �Ohio will have the dubious distinction of being the first state to deny benefits based on marital status.�

Finally, Sally Green, field coordinator of the Human Rights Campaign, spoke about the need to reinforce to people the notion that the Massachusetts decision maintained a �difference between the religious and the civil [marriage] and that religious organizations are not going to be forced to perform same-sex unions.�

She said that there are cases where churches do not have to perform marriages they oppose, such as the Catholic church, �which doesn�t have to perform a marriage with divorced individuals, or with people of different faiths.�

She said that gay marriage was not a very useful or accurate term. �I think Al Sharpton said it best at the HRC presidential forum,� she said, �when he answered, �I don�t know what gay marriage is because we don�t talk about black marriages or Hispanic marriages.��

Green focused on the �very dangerous things looming on the horizon,� an amendment to the U.S. Constitution that would define a marriage as between a man and a woman. She echoed Downing�s concerns that such initiatives were not only bad for same-sex unions, but also for benefits that same-sex couples currently have in limited ways.

�We too, I think, should start calling it FDOBA,� she said, �the Federal Denial of Benefits Act.�

��If this passes,� she said, �it will be the first time that the United States will write discrimination into the constitution.�

She said that of the 27 amendments to the Constitution, all but the 18th Amendment--liquor prohibition--�were used to expand rights. If this passes both houses and is ratified by three-fourths of the states, we could never go back and say that there is discrimination� because the constitution will have that written into it.

She urged those present to go to HRC�s online action center to start writing letters to legislators. She also said that in today�s electronic age, a handwritten letter has more power to get noticed.

Before the audience members got to ask questions or make comments, four couples were invited to give testimonies about their long-term relationships and their struggles with same-sex civil unions and civil rights.

Denny Allemang, who was present with his wife Peg of 50 years, spoke about his gay son Dean and his Dutch partner. Allemang raised the notion that the already-existing difficulties civil rights and civil unions are further complicated when one of the partners is an immigrant.

�These are all our sons and daughters, not just those people. We literally need to make this country the land of the free,� he concluded.

Gay fraternity to have its fourth Ohio chapter at
OSU

by Anthony Glassman

Columbus--The fourth Ohio branch of national gay fraternity Delta Lambda Phi is just a few months away from filing paperwork to become a full chapter.

The Ohio State University group, which is now referred to as a �colony,� has provisional recognition from the Greek Life office at the school, and has graduated two pledge classes. The colony now has 13 brothers.

The colony will admit a third pledge class in the winter semester, and the group expects to file a charter application with the national organization in April, colony president Garth Wall said.

According to Delta Lambda Phi�s national public relations chair Eric Van Sant of Kent, this is the fifth attempt to start a chapter at OSU, and the most successful.

With chapters at Kent State University, Ohio University and the University of Cincinnati, Ohio is the second most populated state for the fraternity after California.

�There�s several GLBT support organizations on campus,� Wall said. �We really were looking for a different type of organization for gay men, a group that had a tighter bond than Fusion or any other organizations on campus.�

The Kent State chapter had a difficult time being approved by the Inter-Fraternity Council in 2002. It was rejected for membership twice, although the council was told by the Campus Life office that rejecting the group violated school anti-discrimination policies.

The Kent chapter was finally accepted as associate members of the council on September 16, 2002. The chapter turned in a petition for full council membership on November 12, and is expecting a response in the next few weeks.

Plumbing, disease and sex dominate DOMA hearing

by Eric Resnick

Columbus--Members of the Ohio House Juvenile and Family Law Committee spent over two hours on November 12 listening to talk about twelve-step programs, venereal disease, transsexual fathers, procreation, nature, the body�s �plumbing,� deteriorating civilization, unprotected anal sex, what God thinks and reasons to leave the �destructive homosexual lifestyle.�

But they heard very little about the matter at hand: House Bill 272, the so-called Defense of Marriage Act that would deny all recognition of same-sex couples in Ohio.

�The anal sex lessons don�t count,� said committee chair Rep. Mike Gilb of Findlay after the hearing. �This happens when you have unsworn testimony.�

Gilb said he expects committee members will learn more about the particulars of the bill from House attorneys and the Legislative Services Commission, not what is aired at public hearings.

Thirteen witnesses--two not from Ohio--told seven of the committee�s 11 members why the bill should be passed at its proponent hearing that day. The measure also has an opponent hearing set for December 3.

The hearing drew a standing-room-only crowd in the 96-seat chamber. State Highway Patrol officers stood outside the hearing room door to prevent overcrowding.

Many proponents carried anti-gay signs, which Gilb told them could not be displayed during the hearing.

Others waved copies of newsletters from the Citizens for Community Values of Cincinnati and Mission America of Columbus, both anti-gay groups.

A video camera believed to be from the 700 Club filmed the hearing, while the crowd cheered between witnesses in defiance of Gilb�s request that they not do so.

Republican Rep. Linda Reidelbach of Columbus, a bill co-sponsor and consistent anti-gay voice in the House, moved through the crowd to a contingent from Worthington Christian Church, which she attends. She was greeted with, �I�m so glad you�re with us on this. Praise Jesus!�

No proponent talked about the bill ending domestic partner benefits and other benefits offered to unmarried couples, which is the most controversial element of the bill.

The bill also seeks to declare any marriage other than one man to one woman against the strong public policy of the state of Ohio. Current Ohio law already limits marriage to one man and one woman.

Witnesses included Greg and Cheryl Quinlan, founders of the Pro-Family Network of Dayton. Both claim to be �ex-gays.�

�The State of Ohio must not become an enabler of this disorder,� said Greg Quinlan, referring to what he calls �Same Sex Attraction Disorder.�

The malady is found only in literature disseminated by the anti-gay National Association for Research and Therapy of Homosexuality. NARTH is not recognized as credible by any secular behavior or research professional organization.

Another Pro-Family Network member, E�tina Denise Ramsey of Cincinnati, told the committee, �I disagree that two people of the same sex can love.�

Ramsey said her father is transsexual, and �as a result of his lifestyle, there is a lot of anger in my home.�

�Dad was loving and Dad provided,� said Ramsey. �The trouble was Dad showing up in drag.�

Carlton Quattlebaum, executive director of Healing Choices Ministry in Canton, Michigan, an affiliate of the �ex-gay� group Exodus International, said, �Gay activists generally aren�t concerned with theological issues and scriptural authority, but over and over again they continue to intimidate and attempt to silence voices in the church that hold to a view contrary to their own.�

Warren Throckmorton, Ph.D., of Grove City, Pennsylvania, told committee members �how psychologists regard the differences between homosexual partners and heterosexual marriages.�

Throckmorton inferred expertise through having been published in journals of the American Mental Health Counselors Association.

AMHCA director of public policy Beth Powell said, �He in no way was representing us.�

�There are all kinds of things in journals,� said Powell. �That doesn�t mean we support or agree with what he writes.�

In his footnoted written statement, Throckmorton referenced some of his �expert� remarks to sources such as a Rosie O�Donnell interview on ABC and the tabloid USA Weekend.

Following questions from Reps. Gilb and John Willamowski of Lima, Throckmorton told a story of a film crew from the Netherlands, where same-sex couples can marry, saying they were documenting higher divorce rates and unstable relationships among married same-sex couples there, as well as health and mental health concerns.

Reidelbach asked if the crew was noticing any other effects of same-sex marriage on Holland or traditional marriage there.

Answering, Throckmorton revealed that the film crew was composed of �exgays.�

Mission America president Linda Harvey told members, �If same-sex relationships become the law of the land, then homosexual marriage will be presented to America�s schoolchildren as the equivalent of heterosexual marriage.�

Ohio Christian Coalition director Chris Long said, �Should the gay lobby succeed in having same-sex marriages legitimized by the state, it will essentially mean that marriage may mean anything. If marriage may mean anything, it means absolutely nothing.�

�There is great concern among the clergy that if the state were to recognize same-sex unions or marriages,� Long added, �then the state would impose on the church a mandate to recognize these relationships which the church believes to be immoral.�

Democrat Rep. Lance Mason of Cleveland told Long, �I don�t follow the argument that the state would impose on churches.�

�If the state recognized same-sex marriages, the mandate would come down from the state to accept the new parameters,� said Long.

Willamowski asked Long about references to procreation being the purpose for marriage in his testimony.

�How do you reconcile that we give marriage licenses to couples past child-bearing age?� asked Willamowski.

�I suppose it is like may pastor said recently,� said Long, �The plumbing fits. It works in nature.�

Citizens for Community Values vice president David Miller said, �We must stop thinking that marriage is the delivery mechanism to solve hospital visitation, adoption issues, or distribute tax breaks. It is not the vehicle to distribute benefits to anyone who wants them.�

Miller said, �Many homosexuals are not truly interested in the benefits of marriage. Otherwise, they would have taken them when offered.�

Miller cites the small number of corporate employees taking advantage of domestic partner benefits, the small number of same-sex marriages in the Netherlands and that �only 6% of homosexuals� in Vermont have entered into civil unions.

�The testimony was dogmatic and had little to do with the bill,� said Rep. Mason after the hearing. �It�s all based on speculation, fear, and conjecture.�

Judge who jailed man for nonexistent crime is sued

by Eric Resnick

Youngstown--A judge that sent a gay man to jail for violating a nonexistent �importuning� law has been made a defendant in the man�s federal lawsuit against the city of Warren and the lawyers that represented him.

Keith E. Phillips, 21, of Youngstown served four months in jail after he pleaded no contest to a second charge under the nonexistent law in April.

The importuning law had made it a crime to ask someone of the same sex for sex if it might offend them. The Ohio Supreme Court found it unconstitutional in May 2002, partly because the same act is legal for someone of the opposite sex.

Phillips discovered this after his August release. He had been convicted of breaking an identical Warren city ordinance which was repealed on November 13, 2002, a month before he was first charged under it.

Last week Phillips filed a $10 million suit against the city of Warren, its municipal court, his former attorneys and two social workers who had prepared a pre-trial report on him. The suit charges false arrest, false imprisonment, legal malpractice and denial of several rights.

Warren Municipal Judge Thomas P. Gysegem and Assistant Prosecutor Traci Rose were both responsible for making sure Phillips was only charged or convicted under existing laws. However, judges and prosecutors have immunity in such cases and can�t be sued.

But Phillips added Gysegem to the suit on November 18, charging defamation by slander for a comment the judge made in a newspaper.

In a story about the initial suit, Gysegem was asked by the Warren Tribune Chronicle about Phillips being charged under a repealed law.

�It�s not my job to go out and find this stuff out,� Gysegem answered, adding that he believed Phillips was correctly charged.

According to Phillips� attorney Randi Barnabee of Northfield Center, it is what he said next that got the judge added as a defendant.

�He has a habit of pulling down his pants around young boys, and as far as I�m concerned, that�s still illegal in the state of Ohio,� Gysegem told the paper.

�Gysegem knew or should have known [this] to be either false or without any evidentiary support and basis in fact,� wrote Barnabee in the amended complaint, which added another $1 million for Gysegem.

Prior to the first charge under the repealed law on December 16, 2002, Phillips had no prior arrest or criminal record.

Asked to comment on the judge�s remarks, attorney and state senator Marc E. Dann of Youngstown, whose firm represented Phillips in the second case said, �I have no idea what he was talking about. He must have known something we didn�t.�

Dann and his employee, attorney Benjamin Joltin, are defendants in the suit.

Warren Law Director Greg Hicks, who represents the city in the case, said, �Gysegem is going to have to speak for himself on this one.�

Gysegem did not respond to repeated phone calls or faxed questions.

Barnabee said Gysegem could be sued for the statement because the judge�s immunity only covers his official duties.

�Gysegem�s statement was not a judicial act,� said Barnabee.

Phillips� troubles began when he was charged December 16, 2002 with importuning after a 17-year-old co-worker complained that banter between him and Phillips had become too crude.

Not knowing the measure no longer existed, Phillips, then 20, appeared before Gysegem without a lawyer and pleaded no contest to the charge.

Gysegem gave him a 180-day suspended sentence, a $600 fine, and five years probation including sex offender courses--paid for by Phillips--and monitoring of his computer.

A second importuning case in April was affected by this one, and Phillips had to serve four months in jail. He was released August 14.

In the second case, Phillips was arrested at work following a report that he had solicited a 14-year-old boy on April 11.

This time he was charged with felony importuning under a section of the Ohio law still in effect that deals with juveniles. He was represented by attorney Joltin.

Phillips produced his time card showing he was at work when the youth said the incident occurred and four co-workers to testify to the same. Phillips� car does not match the one the youth described, nor does he match the teen�s description of the driver that asked him for oral sex.

According to the complaint, Joltin never presented this evidence to the court. Instead, he negotiated a plea bargain for Phillips to spend 120 days in jail in return for no probation violation from the first case.

Phillips said he took the deal under Joltin�s advice, saying Joltin told him, �There are some things not worth fighting for.�

Dann spoke to the Gay People�s Chronicle with Joltin in the background feeding him information.

�We did good work,� said Dann. �We did what he asked us to do,� adding that the decision to accept the plea bargain was Phillips�. �I�m sorry he feels otherwise.�

Dann said a motion to vacate the first conviction was never filed because no one asked him or Joltin to act on the first case.

Dann said he and Joltin consulted closely with Phillips� grandmother Barbara Berndt, and his cousin, Columbus criminal defense attorney Jeffrey Berndt during the time they represented Phillips.

Jeffery Berndt disputes that claim. He said he was not close to Phillips� case and was not sure what the actual charges were.

�Before I could do anything, my mother [Barbara Berndt] hired those guys [Dann and Joltin],� said Berndt.

�I had a little communication with Ben [Joltin],� said Berndt, �but it was nothing tactical.�

�The problem I have,� said Berndt, �is that [Phillips] ended up doing time when I was told he was going to a residential program.�

Upon learning the details of his cousin�s two convictions, Berndt expressed disappointment with the lawyers, the prosecutor, and the judge.

�More than anything else,� said Berndt, �it bothers me that when these guys learned that mistakes were made, they did not correct them.�

Berndt also disputed Gysegem�s claim that checking the charges is not the judge�s job.

�With a no-contest plea, the court has the independent obligation to review the charges and underlying facts in order to find him guilty or not guilty,� said Berndt. �For the court this is a worse position than if [Phillips] had entered a guilty plea.�

City law director Hicks said he doesn�t think the city did anything wrong.

Hicks maintained that Phillips was charged correctly in the second, felony case. However, when pressed, he would not say whether or not Phillips was charged correctly in the earlier case, only that the city didn�t do anything wrong because Phillips pleaded no contest to the charges.

Barnabee raises no objection to the initial felony charges in the second case, only to how the case was handled once Phillips was charged. She said that by plea bargaining the felony charge to a misdemeanor, the city again wrongly convicted Phillips under a nonexistent and unconstitutional law.

Before he knew he had been added to the suit, Gysegem scheduled a hearing on a motion to vacate Phillips� convictions for December 3.

Barnabee said since Gysegem is now a defendant, he has the opportunity to recuse himself from hearing that motion.

If he does not do it, Barnabee said a motion to recuse him will be filed.

The case has been assigned to Judge Lesley Brooks Wells.

Queer eye for the
rock guys, and gals

Lesbian photographer opens exhibit at
the Rock and Roll Hall of Fame

by Anthony Glassman

Cleveland--As Bruce Springsteen said, �Rock and roll, man, it changed my life. It was like the Voice of America, the real America, coming to your home.�

While rock and roll is primarily auditory, the images associated with it are indelibly etched into the collective consciousness of society. Akron natives Devo with their odd, plastic hats; Aretha Franklin projecting her need for respect; the turbulent relationship between Mick Jagger and Keith Richards of the Rolling Stones manifesting in the iconic, homoerotic tension between front man and guitarist have all become an ineffable part of the culture.

Through the last 30 years of it all, one woman�s works have pervaded print media: Cleveland photographer Janet Macoska.

With a photograph of Paul McCartney gracing the permanent collection of the National Portrait Gallery in London, prints of her work in Hard Rock Caf�s across the globe, and a new exhibition entitled �It�s Always Rock and Roll� appearing at the Rock and Roll Hall of Fame through April 2004, Macoska is continuing her record of three decades of success.

She has met and photographed so many legends, it is difficult for her to pick her favorites.

�Among my favorite rockers to photograph are the singer-songwriters who feel their music and communicate it full-tilt to their audience,� she said. �Melissa Etheridge and Bruce Springsteen come to mind. I love capturing their energy and passion on film.�

She continued, �Then there are the theatrically trained rockers, like David Bowie, who are masters of onstage presentation.�

Being a lesbian, her thoughts on the constantly changing sexual orientation of popular musicians are insightful.

�I�m not surprised by the fluid sexuality of rockers . . . David Bowie, Boy George or Elton John,� she noted. �Rockers live a heightened lifestyle, with lots of excesses. Everything is available to them because they are rock stars. Drugs. Sex. It�s the rock star equivalent of Country Buffet, a smorgasbord of all-you-can-eat delights.�

�The excesses will either kill you or send you to the Betty Ford Clinic, and most of the [big] names have learned that hard lesson.�

Bowie has, in the past, described himself as gay, bisexual and straight, and was once caught in bed with Mick Jagger by his then-wife Angela Bowie. Elton John first identified himself as bisexual, then moved away from that as public outcry against him mounted, then came out as gay, as did Boy George.

Macoska started photographing musicians when, as a youngster, she hung out at the WKYC radio station, now WTAM. She would take photographs of the rock stars who came to the station.

Her first published photo was of Sonny and Cher, which ran in Teen Screen magazine when the photographer was 12.

Since then, her photography has appeared in Rolling Stone, Vogue, Sports Illustrated, the New York Times and countless other publications.

A catalog she is writing to accompany the exhibition will include behind-the-scenes stories to go along with the photos, which will be a wonderful gift for rock fans. The book will be available at the Rock and Roll Hall of Fame gift shop, as well as at ArtMetro in the Colonial Arcade in downtown Cleveland, which also sells prints of her work.

As to the future, the changing face of the business can stifle a journalist like Macoska.

�When I started photographing professionally in 1974, everyone could bring their cameras to concerts,� she said. �Then professional photographers could photograph the entire show, wait for the right moment, the right lighting . . . wait for the �magic� onstage.�

�Now,� she laments, �bands require you to shoot the first two songs and then you�re booted out the back door. Professionals will be good shots, but it�s difficult to get the exceptional shots in five to six minutes� time.�

She also noted that, as the saying goes, everything old is new again, as the bands of today keep trying to recycle the past.

�Marilyn Manson is a joke, �cause it�s all been done before by artists more accomplished than he,� she said. �Just ask Alice Cooper or David Bowie. On the other hand, everyone borrows from everyone. It�s another generation, and Marilyn Manson is showing them stuff they�ve never seen or heard before, trying to shock them.�

�Just show business,� she said. �Let me know when he takes up golf like Alice Cooper. Or maybe there will be a chain of Marilyn Manson restaurants or coffee shops.�

Macoska�s show, �It�s Always Rock and Roll,� runs through April 2004 on the fourth floor of the Rock and Roll Hall of Fame, where East Ninth St. ends at Lake Erie. For more information, log onto www.rockhall.com or call 216-7817625 (781-ROCK). To order prints of Janet Macoska�s photography, go to www.janetmacoska.com.