by Eric Resnick

Hamilton, Ohio--A lawsuit to stop Miami University�s domestic partner benefits is groundless because no tax or tuition money is being spent on them, say two couples receiving the benefits.

The couples said in court papers filed this week that a university official�s deposition proves that State Rep. Thomas Brinkman of Cincinnati has no standing to sue it over the program.

Brinkman sued the state school last November, claiming that Ohio�s constitutional amendment against same-sex marriage prohibits it from giving health insurance to employees� same-sex domestic partners. He based his claim on the measure�s second sentence, which bars the state from recognizing any relationship that �intends to approximate� marriage.

Brinkman is closely allied with Citizens for Community Values of Sharonville--the group that campaigned to pass the amendment. He has a son and daughter attending Miami.

The couples, Jean Lynch and Helenka Marculewicz, and Yvonne Keller and Susan Gray, claim in their motion that the suit should be tossed because the domestic partner benefits are paid for with unrestricted gifts from private donors, not tax or tuition money, as Brinkman originally claimed.

Currently, four other state universities also offer domestic partner benefits: Ohio University, Ohio State University, Cleveland State and Youngstown State.

The suit is so far the most significant test of the amendment�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.� Other cases concern its impact on how domestic violence and child custody laws deal with unmarried couples.

In order for Brinkman to prevail, Butler County Common Pleas Judge Charles L. Pater must find that the benefits �approximate� marriage.

Arizona group pays Brinkman lawyers

Citizens for Community Values� counsel, David Langdon of Cincinnati represents Brinkman. He is joined by Jeffery Shafer, Benjamin Bull, and Glen Lavy of the anti-gay Alliance Defense Fund headquartered in Scottsdale, Arizona. Langdon and Shafer authored the amendment in 2004 when they were law partners.

ADF is paying for Brinkman�s side of the suit, according to his earlier statements to the Gay People�s Chronicle, though, according to court papers, attorneys would not allow him to answer that question during his deposition.

The university is represented by Ohio Attorney General Jim Petro and his designee Kathleen Trafford of the Columbus firm Porter, Wright, Morris, and Arthur.

Judge Pater allowed the two lesbian couples to join the suit as intervening defendants in March. Lynch and Keller are university employees; their partners Marculewicz and Gray would lose their health insurance if Brinkman prevails.

The couples are represented by Lambda Legal Defense attorneys Camilla Taylor and James Madigan and Cincinnati civil rights attorneys Alphonse Gerhardstein and Donald Caster.

Gerhardstein filed the current motion July 17.

�[Brinkman] filed his lawsuit based on an assumption that the university was, in his view, wasting taxpayer money and tuition dollars by providing domestic partner benefits,� wrote Gerhardstein. �Discovery has now revealed that [Brinkman�s] assumption was wrong.�

Gerhardsein continued, �This lawsuit is merely a collective effort by a local politician with a history of anti-gay public positions, an attorney who helped draft an anti-gay amendment to the Ohio Constitution, and an organization that litigates against gay and lesbian people across the country to have this court answer an abstract question of Ohio constitutional law in line with their collective agenda.�

The university previously tried to have the suit thrown out on the issue of standing. Their argument is that if Brinkman�s interpretation of the amendment is correct, it would violate the equal protection and due process set forth in the Fourteenth Amendment to the U.S. Constitution.

Source of money never questioned

The new information on the funding source for the benefits was revealed when university comptroller Dale Hinrichs was deposed.

Hinrichs testified that the benefits were paid out of the university�s �unrestricted private gifts fund,� not by taxpayers or tuition.

Gerhardstein asserted, however, that even if the benefits were paid by taxpayers, Brinkman still has no standing to sue because he is not suffering damages.

�Being a taxpayer does not give an Ohio citizen standing where his objection to the use of public money is the same as what could be raised by any other taxpayer,� argues Gerhardstein. �Second, paying the bills of an adult child�s tuition does not give a parent the right to sue a university; if it did, every parent could challenge every university expenditure. Tuition payers do not have standing to challenge how a university spends the money it receives from private donors.�

Based on Brinkman�s deposition, Gerhardsein argues that Brinkman, who is running for re-election, never questioned the university or investigated how the benefits were funded before filing his suit.

�Instead, [Brinkman] filed this lawsuit based on conversations he had with an attorney and a legal services organization, all of whom share a record of political and judicial action against gay and lesbian people.�

�Despite the fact that [Brinkman] discussed with a news reporter the conversations between himself and his lawyer David Langdon that led to decision to file the present lawsuit (thereby waiving any applicable attorney-client privilege), [Brinkman�s] counsel refused to allow [him] to answer questions as to which of the two came up with the idea to file the present lawsuit,� Gerhardstein wrote.

During his deposition, Brinkman was asked how he determined that the university�s domestic partner benefits violated the Ohio Constitution.

He replied, �It�s something that would have to be--it�s one of those things like pornography. I know it when I see it, but I can�t necessarily describe it.�

Wants opposite-sex couples included

During Equality Ohio�s lobbying day at the Ohio Statehouse, Brinkman told LGBT constituents, then later confirmed to this reporter that he would drop the suit against Miami University if the university would give the benefits to unmarried opposite-sex couples, too.

He said that the University of Toledo is considering a plan that would cover same-sex and opposite-sex unmarried couples, which he sees as an opportunity to expand health coverage.

Toledo�s plan �is in no way trying to mimic marriage, and I don�t have a problem with that, � Brinkman said, in an apparent contradiction to the premise of his Miami lawsuit.

Madigan said the expansion of Miami�s benefits to include unmarried opposite-sex couples has been floated during negotiations to try to settle this suit, but Brinkman�s attorneys won�t allow it.

Brinkman�s attorneys must reply to the couples� motion by July 27.