November 19, 2004

Cleveland Heights registry may be
Issue 1s first test

by Eric Resnick

Cleveland Heights--A domestic partner registry passed by Cleveland Heights voters last year could become the first court test of the Issue 1 state constitutional amendment banning same-sex marriage and civil unions.

A suit against the registry begun earlier this year may lead to an opportunity for Ohio courts to interpret the amendment�s second sentence, which bars anything that �intends to approximate the design, qualities, significance or effect of marriage.�

Cleveland Heights councilmember Jimmie Hicks and former state school board member Charles Byrne signaled their intent to bring a new suit against the registry under the amendment, in papers filed November 5 in their existing suit against it.

The existing case is now in the Eighth Ohio District Court of Appeals after a lower court ruled against them.

The two told the Eighth District court that they intend to bring the new suit in common pleas court once the amendment takes effect December 2.

Hicks brought the original case against the registry last February, saying it exceeded the city�s home-rule powers and violated the state �defense of marriage act� passed last winter.

Cuyahoga County Common Pleas Judge Robert T. Glickman upheld the registry on May 28, ruling that it didn�t break the home-rule law and also doesn�t confer any of the benefits of marriage.

Hicks and Byrne appealed the ruling a month later. In September, with Issue 1 headed for the ballot, they attempted to halt the case until after the election so that they could add the amendment�s second sentence to their arguments, assuming it passed.

The Eighth District denied their motion and ordered the case to proceed.

Three days after the amendment passed, Hicks and Byrne tried again. They asked the court to suspend their case while they brought the new suit.

Cincinnati lawyer David Langdon, representing the two, argued that the purpose of their move to stay the case was �to promote judicial economy and preserve taxpayer resources.�

The court denied the motion on November 9, in an order signed by Presiding Judge Anne L. Kilbane with Judge Patricia A. Blackmon concurring. This leaves the original case in progress.

�They�re just trying to get another bite at the apple� with a second suit, said Cleveland attorney William Hanna, who represents the city with its law director John Gibbon.

Hanna said that Hicks and Byrne are trying to find ways around Glickman�s ruling that the registry is constitutional and does not confer any benefits.

Glickman wrote, �Foreign jurisdictions are not bound to acknowledge the registry or to confer any rights or obligations. Residents and nonresidents are free to recognize the declaration, but no other city is obligated to take notice. The registry does not create any result, either within the city or outside its territory, other than the mere existence of names on a list.�

Hicks and Byrne had argued in Glickman�s court that the registry attempts to accomplish �the defiant end of circumventing Ohio�s �strong public policy� in favor of marriages between one man and one woman and against marriages between persons of the same sex.�

Their legal argument was based on the so called �defense of marriage act� written by Langdon for the Ohio legislature and passed last winter.

Though Glickman did not take notice of it for the purpose of ruling, the suit was filed before the law took effect.

Glickman�s findings, however, present Hicks and Byrne with the additional legal hurdle that the registry, being just a list of names, does not confer any legal status.

That interpretation could also weaken their case in a suit under the constitutional amendment, which also relies on the assumption that the registry approximates marriage.

Gibbon said that if Glickman�s ruling that the registry confers no legal status is upheld, that will dispose any court to rule likewise in a later suit.

�Judicial economy would therefore dictate that the present appeal proceed as quickly as possible so that the issue can be resolved at an early time,� Gibbon said.

Langdon did not return calls for comment for this report.

The Eighth Circuit court told Langdon he had until November 22 to file his next brief and that no more extensions will be given.

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