But ruling leaves the�door open for another one

by Eric Resnick

Hamilton, Ohio--A court has dismissed State Rep. Thomas Brinkman�s suit against Miami University�s domestic partner benefits, saying that he has no standing to sue.

However, Butler County Judge Charles L. Pater noted that the employee benefits, similar to those at five other state universities, might still violate the state constitution�s ban on same-sex marriage or legal status for anything approximating it.

Pater�s November 20 ruling granted summary judgment in favor of two couples who receive the benefits. He dismissed the case only on Brinkman�s lack of standing, and did not decide whether or not the benefits are constitutional.

�Brinkman maintains that Miami�s policy violates the Ohio Constitution,� wrote Pater. �Arguably, Brinkman is correct, but he lacks the requisite, adverse legal interest in the dispute.�

Brinkman �does not have standing to sue,� as a taxpayer, according to Pater.

Brinkman�s suit was a taxpayer action, which is difficult to bring in Ohio. It requires that the plaintiff prove, to a very high legal standard, that he has been damaged by an unconstitutional expenditure, and that the injury will be redressed when the expenditure stops. Few taxpayer actions are successful.

�Our position is that a taxpayer action is acceptable,� said Brinkman�s attorney Jeffrey Shafer, �and that�s what we will argue on appeal.�

Brinkman is also represented by David Langdon.

Langdon and Shafer wrote the constitutional marriage ban amendment, passed by voters in 2004, when the two were law partners representing Citizens for Community Values of Sharonville. Shafer now works for the Alliance Defense Fund at their Washington, D.C. office.

ADF, which often takes anti-gay cases, is paying for Brinkman�s side of the suit, according to his earlier statements to the Gay People�s Chronicle. However, his attorneys would not allow him to answer that question during depositions.

Pater�s 19-page opinion focuses briefly on taxpayer standing, then moves on to the judge�s belief that the matter is probably a political one, not one for courts, and that Brinkman may have been more successful asking the Ohio Supreme Court to stop the benefits with a �writ of mandamus.�

Shafer described this as the judge�s restatement of what was covered at the three-hour oral argument held September 11.

The decision is also limited to the motion for summary judgment filed by two lesbian couples, Jean Lynch and Helenka Marculewicz; and Yvonne Keller and Susan Gray.

Pater allowed the couples to join Miami University as defendants because Lynch and Keller are university employees, and Marculewicz and Gray stand to lose their health benefits.

The couples are represented by Lambda Legal Defense attorney James Madigan and Cincinnati attorneys Alphonse Gerhardstein and Jennifer Branch.

The university, represented by Kathleen Trafford of the Columbus firm Porter, Wright, Morris and Arthur, was not part of the proceeding.

Shafer and Madigan handled the oral arguments on behalf of their clients.

�The order rendered here relates only to Brinkman�s lack of standing as a taxpayer and citizen,� wrote Pater. �Brinkman neither belongs to any special class of taxpayers who can be presumed to have suffered individual, concrete damages, nor does he allege that type of damages.�

Lambda�s Madigan claims that as a major victory, both in this case, and in future litigation under the amendment.

�Frequently, we have people trying to reach out and take swipes at same-sex couples, which is what they tried to do here,� Madigan said. �But this decision says that to the extent that you are not injured [by what someone else gets] you can�t take that swipe.�

�It�s hard to see how a plaintiff could prove that giving benefits to same-sex couples hurts another person,� Madigan continued.

�It also reminds David Langdon and ADF that the amendment doesn�t mean open season in the courts just because it passed,� Madigan said.

But Pater seemed to leave a door open.

�The order should not be construed to suggest that no one can challenge the practice at issue in the court of common pleas,� he wrote. �Likewise, it should not be read as prohibiting someone in Brinkman�s situation from maintaining a different type of action, perhaps in a different court.�

Pater also took note that Brinkman, who has a son at the university, did not bring the suit as a tuition payer, but he suggested that it may not have made a difference.

The tuition issue appears to have been brought into the case by the couples, and the source of the money used to pay for the benefits was addressed extensively at oral argument.

During discovery, it was found that due to accounting practices, a significant part of the money came from private, unrestricted funds, not tax money, but also that the university changed accounting practices as a result of the litigation.

�For the purpose of this motion,� wrote Pater, �the money�s source makes no difference. Brinkman lacks standing either way.�

But Pater then opined, �To classify this money as anything but public funds is suspect, and certainly the [university] should not skirt constitutional restraints by clever accounting practices.�

Shafer said the Twelfth District Ohio Court of Appeals, which will get the appeal, has never heard a case like this before. He added that they will also advance their secondary argument that Brinkman has public rights standing, not just rights as a taxpayer, because the matter is of significant public importance.

Shafer said Pater�s decision is just part of �a lot of trips up and down� that are to be expected with this sort of lawsuit.

�Our hope is that this will discourage people from taking such actions based on ideological grudges,� said Madigan.

Ohio�s other public universities offering domestic partner benefits are Ohio University, Ohio State University, Youngstown State, Cleveland State and the University of Toledo.