April 2, 2004

Couples denied marriage licenses at Cuyahoga courthouse

by Eric Resnick
and Anthony Glassman

Cleveland--Fifty-eight same-sex couples went to the Cuyahoga County Courthouse on March 26 to apply for marriage licenses.

As expected, their applications were rejected. Senior Probate Judge John Donnelly explained to each couple that Ohio law bars same-sex couples from marrying.

�Your application indicates that you are both the same gender,� said Donnelly, who added that the state of Ohio has decided that both applicants being the same gender is �an impediment to marriage,� prohibiting him from granting the license.

�As a judge, I cannot give an opinion on [same-sex marriages]. I have to follow what the Ohio legislature and the appeals courts have given me,� he said, explaining that he was meeting with the couples personally instead of handing the responsibility to another court officer.

�Some of us wish it wasn�t this way,� said one registrar, who asked not to be identified. �But we have to follow the law.�

Registrars counted 28 couples who submitted applications with the non-refundable $40 fee. In addition, 30 other couples either did not pay the fee, or took their signed denial orders from Donnelly with them as souvenirs.

Outside the courthouse, a throng braved the driving rain for a rally to support same-sex marriage. In front of a sea of umbrellas, singer-songwriter Anne E. DeChant sang �We Shall Overcome� and speakers urged the crowd to continue to fight for equal marriage rights for all Americans.

Milling among the crowd were many reporters, whose venues ranged from school papers to the Ohio News Network. Cameras for local TV stations were there in abundance, wrapped in protective covers to keep them dry.

Massachusetts ban amendment passes

Measure must be approved again next year, then by voters. Meanwhile, weddings begin May 17

by Eric Resnick

Boston--Massachusetts lawmakers narrowly approved a constitutional amendment banning same-sex marriages while creating civil unions on March 29.

The amendment is in response to the state�s landmark Supreme Judicial Court ruling in November that changes the definition of marriage from �one man and one woman� to �two people.�

It is intended to overturn the ruling, which set May 17 as the first day for gay and lesbian couples to marry.

In order to be enacted, the amendment must get a second majority vote in the legislature in 2005, then be approved by voters in 2006. All 200 members of the legislature are up for election this November.

The approved amendment, sponsored by Senate President Robert Travaglini, a Democrat, and Senate Republican leader Brian Lees, was substituted for a similar one considered earlier which was sponsored by Travaglini and Democrat Speaker of the House Thomas Finneran.

The final version includes language specifying that civil unions do not beget federal benefits.

The amendment is disliked equally by same-sex marriage backers who like the court�s decision, and marriage opponents who also oppose civil unions.

Both sides engaged in parliamentary maneuvering. Marriage supporters voted for the amendment in two preliminary votes to keep more objectionable proposals off the table, then against it on the final vote. Opponents voted against it preliminarily, and for it in the end in order to send something to the voters and bolster Governor Mitt Romney�s attempt to undermine the court�s ruling.

�There is no single clear solution to this issue,� said Lees. �If there was such a solution, we wouldn�t be here today. But this amendment attempts to strike a balance between those citizens who want to be heard in defining marriage yet never taking away the rights and benefits of gay and lesbian couples.�

In the end, nearly equal numbers of marriage supporters and opponents switched votes. The final vote was 105 for and 92 against the measure, following two preliminary votes of 116-81 and 111-86.

Ronald Crews, president of the anti-gay Massachusetts Family Institute, said the preliminary votes were victories for the marriage supporters, then called the final vote a �meager victory� for marriage opponents.

Outside the House chambers, crowds were smaller than at previous sessions on February 11 and March 11, with a higher percentage of opponents in the mix.

Cries of �Jesus Christ� and �Equal Rights� blended into a single, indistinguishable rhythm.

Governor tries to stop May weddings

Republican governor Mitt Romney, an opponent of same- sex marriages, said immediately after the amendment�s approval that he will try to stop them from happening on May 17.

�If we begin providing for same-sex marriages on May 17, as ordered by the court, and then our citizens choose to limit marriage to a man and a woman by their vote in November 2006, we will have created a good deal of confusion during the period in between,� said Romney.

Romney asked Attorney General Tom Reilly to take his request for stay to the high court.

Reilly, the Democrat who will likely oppose Romney in 2006, quickly refused the governor�s request, even though he personally opposes same-sex marriages.

Reilly said he is convinced that the governor�s request has no legal merit, given that the court ruled strongly for marriage twice.

�The arguments that the governor makes are political arguments,� said Reilly. �The governor�s job is to implement the law of the state and I expect him to do that.�

According to state law, the governor can only be represented in court by the attorney general or independent counsel appointed by the attorney general.

There is speculation that Romney might attempt such an arrangement or to attempt to pursue the matter as a private citizen. He also may attempt to sue the attorney general�s office claiming that Reilly does not have the authority to turn down his request, though that is a legal long shot.

Romney argues that the issue of legal chaos and confusion resulting from marriages running two and a half years, then being outlawed, has not been addressed by the court.

Gavi Wolfe, a spokesperson for Gay and Lesbian Advocates and Defenders, the law firm that won the marriage case, said the 180-day period between the court�s decision and the May 17 beginning of licenses was �so that the legislature could fix existing laws related to marriage so they would conform to the decision, not allow the legislature to do an end run around the decision.�

GLAD issued a statement vowing to fight Romney in court if he attempts to block same-sex couples from legally marrying in May.

After delay, Corrigan will fill Lakewood council seat anyway

by Eric Resnick

Lakewood, Ohio--City Council decided to appoint the most anti-gay of 12 applicants to fill the vacant Ward 1 seat on March 29, after two members had forced a delay to consider other candidates.

Days earlier the appointee, Patrick Corrigan, refused to meet with gay and lesbian residents.

In a small conference room, five council members met as a committee of the whole to interview six new applicants. Six other applicants, including Corrigan, had been interviewed earlier.

At-large council member Denis Dunn listened to the meeting over the phone. Due to state law governing public meetings, he could not say anything during the proceedings. Seven citizen observers stood around the table, all of whom had interest in lesbian, gay, bisexual and transgender issues. Each applicant was questioned for 15 minutes.

Dunn and Ward 2 council member Ryan Demro had forced the council to slow down the selection process. Corrigan was originally set to be appointed March 15, two weeks after his predecessor resigned to become the city�s law director. Dunn and Demro voted against a motion to suspend council rules that evening, asking council to seek additional applicants with more diversity among them.

In the end, the majority led by council president Robert Seelie voted to recommend Corrigan, their original favorite. At-large members Michael Dever, Edward FitzGerald and Ward 4 member Mary Louise Madigan also voted for the attorney and former Jesuit. He will be formally appointed at the April 5 council meeting.

Corrigan is arguably the least LGBT-friendly of the applicants. He strongly opposed domestic partner benefits for city employees in 2000 and has lobbied council against LGBT issues.

Corrigan further raised the ire of the LGBT community by refusing to meet with the Cleveland Stonewall Democrats Lakewood Caucus, although he had said he was open to all sides of the issues and would work for all of the community.

The following day, Corrigan confirmed that he had declined to meet with the LGBT group the week before.

The Stonewall Democrats are recognized as an official part of the Cuyahoga County Democratic Party. Corrigan is a past president of the Lakewood Democratic Club.

�I told them I would meet with them when the process was over,� said Corrigan, who refused further comment after saying his refusal was �due to the notoriety of the issue.�

Lakewood has been split on issues of GLBT equality and has experienced bitter opposition to measures ranging from domestic partner benefits for city employees, defeated in 2000, to a rainbow flag at city hall during the week of Cleveland Pride, passed last year.

According to the 2000 census, Lakewood is second only to Cleveland Heights in percentage of gay and lesbian couple households among Ohio cities with population greater than 10,000.

Corrigan was chosen after five rounds of secret ballot voting.

After four rounds of no candidate getting the required four votes, FitzGerald asked for one more ballot.

�We need to make a decision so we don�t cede this process to the mayor,� said FitzGerald.

�I echo what [FitzGerald] said,� said Demro, �but let Susan Jankite be that person.�

On the final ballot, Jankite, also an attorney and supportive of domestic partner benefits, got one vote. Corrigan got the needed four.

Seelie made a motion to suspend the rules of the April 5 council meeting so Corrigan could be voted in without the otherwise mandatory three readings. His motion was not seconded, but passed unanimously on roll call vote.

Seelie then made a motion to recommend Corrigan to fill the ward 1 seat. It was seconded by Dever and passed with opposition only from Demro.

Following the meeting, Rev. Robert Strommen confronted Dever, Madigan and FitzGerald, complaining about Corrigan�s refusal to meet with the LGBT leaders. Strommen, a Lakewood resident, is a member of Parents, Family and Friends of Lesbians and Gays and an LGBT rights activist.

Dunn, over the phone, questioned Corrigan�s ability to be an effective member of council when he learned of the refused meeting.

�Pat [Corrigan] wasn�t sure the Stonewall Democrats would give him a fair hearing,� said FitzGerald.

�Will you see to it that [Corrigan] meets with us?� asked Strommen. �The ball is in your court because you elected him tonight.�

Strommen�s wife Joyce said that by choosing an applicant with anti-gay views, �they made a statement that Bob and I and two of our children are not welcome in Lakewood.�

�We don�t need to leave Lakewood,� said Stonewall Democrats Lakewood Caucus spokesperson Nickie Antonio. �But what this means is that [the LGBT community] needs to be out, present, and hold them accountable, and teach them what our issues are and what�s important to us.�

Military discharges have slowed since 9-11, SLDN finds

by Anthony Glassman

Washington, D.C.--Despite a steady rise from 1994 to 2001, military discharges based on sexual orientation have plummeted 39% since military action began following the September 11, 2001 terrorist attacks on the United States.

The Servicemembers Legal Defense Network released their tenth annual �Conduct Unbecoming� review, which outlines military discharges and anti-gay harassment for the previous.

The document, which was unveiled March 24, indicated a drop in gay-related discharges for the second year in a row. In 2002, there were 906 discharges for violations of the military�s decade-old �don�t ask, don�t tell� policy. Last year saw 787 discharges, the lowest number since 1995.

The decline in discharges is attributed to the military�s need for personnel during times of war, in this case ongoing missions in Afghanistan and Iraq.

�Gay discharge numbers have dropped every time America has entered a war, from Korea to Vietnam to the Persian Gulf to present conflicts,� the report says.

As the need for personnel materialized, each branch of the armed forces issued �stop-loss� orders, which halt discharges. The branches� orders, however, did not apply to gay-related discharges.

A March 29 Washington Post editorial says that the military is being hypocritical in keeping gay and lesbian service members during wartime.

� �I want you discharged from the military--but not just yet�,� the editorial begins. �That�s the message Uncle Sam has these days for gay men and lesbians who serve in the military.�

�How badly, we wonder, has unit cohesion--in whose name the gay ban is perpetuated--suffered for all those gay men and lesbians whose service has been prolonged by military necessity?� the newspaper asks. �And if gay men and lesbians serve their country honorably and effectively during wars, where is the decency in drumming them out as soon as peace permits?�

The SLDN report also notes that many key American allies allow gay and lesbian personnel to serve openly, like Israel and England, and American soldiers have served with them without incident, also calling the �unit cohesion� argument into question.

The report points to both the great cost of training the personnel dismissed over the last decade--between $250 million and $1.2 billion.

It also indicates that the nearly 10,000 soldiers cashiered for their sexual orientation since 1993 would comprise one-third of the 30,000 new troops the Army claims to need for the fight against terrorism.

�The evidence against [the military policy on gays] is irrefutable and its repeal is inevitable,� SLDN executive director C. Dixon Osburn said. �Our nation has wasted too much talent and too much money on an exclusionary law that undermines our national security interests.�

Circuit court hears appeal of Salem TG firefighter

by Eric Resnick

Cincinnati--A three judge panel of the Sixth Circuit Court of Appeals heard the appeal of a transgender firefighter suing the city of Salem, Ohio for discrimination.

Lt. Jimmie Smith says the city tried to force him out after he began making his appearance more feminine. He is suing Salem, near Youngstown, and seven of its employees for discrimination based on sex stereotyping under Title VII of the 1964 Civil Rights Act.

One step below the U.S. Supreme Court, the Sixth Circuit is the highest court so far to hear a sex stereotyping case brought by a transgender person.

The appeal heard March 19 was brought by Smith after U.S. Distict Judge Peter C. Economus of Cleveland dismissed the case in February of last year.

Economus ruled that Title VII does not prohibit discrimination on the basis of transsexualism.

�Though the claim is stereotyping,� wrote Economus, �the discrimination is in reality based upon his transsexuality.�

Economus also dismissed the case due to a lack of �adverse employment action,� saying that even though Smith was to be suspended 24 hours for an alleged rule infraction in April 2001, a judge stopped the city from enforcing it.

Smith is represented by attorney Randi Barnabee of Northfield Center, who is also transgender.

The city of Salem and the seven individuals, Fire Captain Thomas Eastek, Fire Chief Walter Greenamyer, Law Director C. Brooke Zellers, Mayor Larry DeJane, Auditor James Armeni, Service Director Joseph Julian, and Civil Service Commission chair Harry Dugan are represented by Aretta Bernard of Roetzel and Andress of Akron.

In the original complaint, Smith alleged that once he told Eastek of his gender identity disorder and began expressing a more feminine appearance on a full-time basis, Eastek, Greenamyer, Zellers, DeJane, Armeni, and Julian conspired to fire him.

Smith, who still holds his position in the Salem Fire Department, also claimed that he suffered privacy violations and harassment from his superiors and co-workers.

Smith�s appeal says that Economus confused the terms �transsexual� and �gender identity disorder,� and this led the judge to older case law.

�GID is not transsexualism,� wrote Barnabee. �GID is a diagnostic term. Transsexualism results from GID�s more acute manifestations, but not all who suffer GID are transsexual.�

Barnabee argued that the 1989 U.S. Supreme Court decision Price Waterhouse v. Hopkins applies Title VII to all sex stereotyping, including that which is directed at transsexuals.

That belief has since been upheld by several courts, including a Ninth Circuit case and two in Ohio.

Bernard argued that Smith was attempting to �use a Price Waterhouse �loophole� to plead an otherwise invalid Title VII claim.�

She further argued that Price Waterhouse has no application in Smith�s case because Ann Hopkins, the prevailing party in that case, is not transsexual.

Bernard argued that the correct controlling case law is the earlier U.S. Supreme Court case Ulane v. Eastern Airlines, which held that Title VII does not protect transsexuals.

Bernard called Barnabee�s characterization of Smith�s case as sex stereotyping �a disingenuous attempt to avoid the fatal effects of Ulane.�

Oral arguments were heard by Judges Ronald L. Gilman and R. Guy Cole, and visiting judge William W. Schwarzer, a senior judge from the Northern District of California.

Each side had 15 minutes for oral arguments. Barnabee went first, telling the panel that Economus� decision relegates sex stereotyping to rule of art, �then pooh-poohs it.�

Schwarzer asked, �Are you extending Title VII to gays?� Barnabee replied that gays are not a protected class, but if they are discriminated against by sex stereotyping, it could be actionable.

Gilman asked if there were any cases in the Sixth Circuit where Title VII protected transsexuals from sex stereotyping.

Barnabee told him of the two Ohio cases and two others.

�This is the first time since Price Waterhouse that one of these cases has risen to the circuit [appellate] level,� said Barnabee.

�What about the adverse employment action,� asked Schwarzer.

Cole and Gilman asked if Smith lost pay during the suspension.

�No,� replied Barnabee. �He never served the suspension.�

�But our position is that it wasn�t overturned until it left the Salem Civil Service Commission and went to the Common Pleas Court,� said Barnabee. �If you take the position that the courts are just an extension of the administrative process, then no one could ever have an adverse action.�

�If you allow [Economus�] decision to stand, it will mean that Title VII can only be applied if one is not gay or transsexual,� said Barnabee, �which would carve out an exception to the law.�

Bernard began her presentation by telling the panel, �I believe the key and most salient fact is that Jimmie Smith is an active firefighter and never suffered an adverse employment action.�

She asked the panel to look at other decisions that suggest that no adverse action was taken against Smith.

�What about the merits of the claim?� asked Schwarzer.

�I take exception to the claim that the [district] court pooh-poohed this argument,� said Bernard.

�This court cited Ulane as being the correct view of the law, because Price Waterhouse doesn�t deal with transsexuals,� said Bernard, �It dealt with someone who was expected to act more like a woman.�

�In this case, more like a man,� said Gilman.

�It�s axiomatic,� said Barnabee, later during her rebuttal. �One cannot determine transsexualism unless it manifests in some way.�

�Real men don�t say �I feel like a woman,�� Barnabee added.

�Where is that in the complaint?� asked Schwarzer.

�The complaint doesn�t say he was discriminated against because he is transsexual,� said Barnabee, �it says he was treated differently because he was not acting masculine enough.�

Barnabee told the panel that in cases challenging the military�s �don�t ask don�t tell� policy, the courts have held that simply saying you are gay is �homosexual conduct.�

�It�s the same for transsexuals,� she said.

Following the hearing, Bernard, who attempted to focus the judges on the �adverse employment action� issue, said, �This is not the case for the hotter topics.�

A decision is expected in six months.

Ban amendments set back in Kentucky, 2 other states

by Anthony Glassman

Frankfort, Ky.--A proposed amendment to the state constitution that would ban the recognition of same-sex marriage was apparently scuttled on March 26.

Republicans walked out of the Kentucky House to protest a Democrat move to attach the marriage amendment to another one limiting judicial ability to mandate legislative action and end debate on GOP motions to remove the second issue.

Without the GOP legislators, the House lacked the necessary votes to pass the amendment. Had it passed, it would have differed from the Senate version, which did not include the measure about the judiciary.

On March 29, the Family Foundation, a religious right organization, held a protest rally at the capitol, urging lawmakers to bring the measure back up. But the legislature adjourned its final day to pass legislation without reviewing the previous vote.

The marriage ban amendment could be brought back during a two-day session on April 12 and 13 intended to deal with bills vetoed by the governor.

The battle for constitutional amendments raged in other states as well, with mixed results.

The day before the Kentucky House scuttled their state�s measure, the Kansas Senate spent six hours debating a similar amendment before stripping it of a ban on civil unions. The pared-down version of the amendment was defeated 17-16.

The amendment, like Kentucky�s, might return during a special session on April 28.

Kansas Sen. Susan Wagle said she believes it will be brought back in that session.

�If it doesn�t,� she told the Topeka Capital-Journal, �I think you�ll have a new Senate next year. It�s too important. People care about it.�

In Minnesota, a Senate committee defeated an amendment directly banning same-sex marriage in the state, but passed a different amendment barring judges from changing the definition of marriage.

Sen. Michele Bachmann, a Republican who proposed the original amendment, opposed the new one. He argued that it would still allow same-sex marriages in the future.

The Minnseota House had already passed Bachmann�s amendment. It is controlled by Republicans, while the state Senate is held by the Democrat-Farmer-Labor party.

The measure that passed the Senate was introduced by Sen. Don Betzold, a DFL member. Betzold is not fond of his own proposal, but believes it takes care of one of Bachmann�s main arguments, that of �activist judges� changing the definition of marriage.

�If you give people a bad choice or something they can live with, I think people will take what they can live with,� he told the Minneapolis Star Tribune. �If it wasn�t my bill, I would have serious questions about it if it was being brought up under other circumstances.�

All of these actions came days after the March 23 passage by a Tennessee House committee of yet another marriage amendment. Tennessee, like three-quarters of the states, has �defense of marriage� legislation defining marriage as being between a man and a woman. The proposed amendment would insert that language into the state constitution.

The measure passed the House Children and Family Affairs Committee on a 9-3 vote.

No Sharks, no Jets, just Red

Orchestra celebrates the works of two gay composers

by Anthony Glassman

Cleveland--In 1957, the musical West Side Story brought the classic Shakespearian tale of Romeo and Juliet to a new generation of audiences.

Combining the talents of two of the most famous American composers of the twentieth century, Leonard Bernstein and Stephen Sondheim, West Side Story exemplifies American musical theater. Bernstein wrote the music, Sondheim the lyrics. While Bernstein is now dead, Sondheim continues to be one of the biggest names on Broadway.

Despite his marriage and children, Bernstein was gay. His parties were a virtual who�s who of queer literati. Sondheim is also gay. Between them, the two were responsible for some of the most famous works in American musical theater.

Fast-forward to 2004, as Red (an orchestra) celebrates its sophomore season. Openly gay artistic director and conductor Jonathan Sheffer started Red in 2002 to bring new Cleveland area listeners to the world of classical music. He decided present those two iconic composers to northeast Ohio in a way less familiar to audiences.

Sheffer founded New York�s Eos Orchestra, and during his days in New York had met both Sondheim and Bernstein. He realized the depths of their talent. Sheffer decided it was time for their works to shine anew.

�I think what I�m trying to do here, as with all Red concerts, is to introduce people to the work of a favorite composer they may not know,� Sheffer said. �Beyond West Side Story and beyond Sondheim�s musicals there are works that give a deeper picture of classically-trained composers working in less popular idioms.�

The show will do just that, presenting Sondheim�s �Stavisky� Suite and Concertina (1949), as well as Bernstein�s Clarinet Sonata and Prelude, Fugue and Riffs.

Even more than bringing audiences this music, Sheffer can honor the men who have made such an impact in his life.

�Bernstein was the most galvanic, dynamic and intimidating musician I have ever known,� he said. �I spent precious little time alone with him, but saw him a great deal with his family, since I first knew his children as friends. When he gave me a moment or two alone in his studio, I played him some of my songs, which he always tried to rewrite on the spot!�

He continued, �Sondheim has been more of a longtime friend, an ally and a supporter, a friendship that has been one of the most important in my musical life.�

While Sheffer dismissed any direct correlation between their sexual orientation and their talent, he did note, �It is safe to say that an unusually large percentage of �great� American composers have been gay.�

Sheffer also dismissed another classic stereotype. When asked about his baton, and whether any of the musicians under his command were brave enough to joke about his �big stick,� he brought up the San Francisco Orchestra�s openly gay conductor.

�Actually, like on of my main teachers, Michael Tilson Thomas, I prefer to use a very short baton, which belies the notion that size matters,� he quipped.

Red (an orchestra) will present two performances of �Lenny and Steve,� the works of Bernstein and Sondheim, on Tuesday and Wednesday, April 13 and 14.

The April 13 show is at 8 pm at Baldwin-Wallace College in Berea, and the April 14 show is at the Tri-C Metro Campus auditorium in downtown Cleveland.

For more information, log onto www.redanorchestra.org, or call 440-5191733.