Friday, October 8, 2010

Leonard Link: Another Loss for Alliance Defense Fund in its campaign to rid America of legal recognition for same-sex partners

Leonard Link: Another Loss for Alliance Defense Fund in its campaign to rid America of legal recognition for same-sex partners:

Another Loss for Alliance Defense Fund in its campaign to rid America of legal recognition for same-sex partners

The Alliance Defense Fund (ADF), an organization dedicated to opposing gay rights in the courts, has struck out in the Court of Appeals of Ohio (8th Appellate District) in its challenge to the city of Cleveland's domestic partnership registry ordinance. The court ruled unanimously on September 30 that Ohio's anti-gay marriage amendment did not deprive the Cleveland city government of the ability to establish a domestic partnership registry. The city's legal staff successfully defended the local law, with amicus assistance from the ACLU of Ohio and Lambda Legal's Midwest Office in Chicago and cooperating attorneys from Cleveland.

The city enacted its ordinance on December 8, 2008. Couples can file their declarations of domestic partnership with the city if they meet specific criteria, thus generating a document that attests to their status as domestic partners recognized by the city of Cleveland. The ordinance does not provide any specific benefits to registered partners apart from the municipal recognition of their relationship.

But ADF promptly acted to stir up litigation, claiming that the ordinance violates Section 11, Article XV, of the Ohio Constitution, the marriage amendment whose passage was secured by opponents of same-sex marriage. That provision states: "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. 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." The plaintiffs' argument, as summarized by the court of appeals, was that if domestic partnerships recognized by Cleveland "approximate just some of the enumerated aspects of marriage, then the domestic partners ordinance is unconstitutional." The trial court rejected this argument, and denied injunctive relief against operation of the registry. The court of appeals agreed with the trial court.

Writing for the unanimous three-judge panel, Judge Colleen Conway Cooney looked to a prior ruling by the Ohio Supreme Court rejecting the argument that because of this amendment, the state could not address domestic violence within same-sex couples under its criminal law. According to the Supreme Court, being married is "a status" that "gives a person certain legal rights, duties, and liabilities." In light of this, the court concluded that "the second sentence of the amendment means that the state cannot create or recognize a legal status for unmarried persons that bears all the attributes of marriage - a marriage substitute." In other words, the amendment would likely prohibit Ohio from establishing civil unions or domestic partnerships that carry all or virtually all of the state-law rights associated with marriage, but it does not stand in the way of the state, or its political subdivisions, extending lesser degrees of recognition to same-sex relationships in regard to particular policy issues.

Or, as Judge Cooney interprets the prior decision, "the Ohio Supreme Court explained that any legally established relationship bearing less than all the attributes of marriage is constitutional."

The Cleveland ordinance falls far short of even that. Although its qualifying criteria require domestic partners to reside together, to maintain a "committed relationship," and to "share responsibility for each other's common welfare," there is no enforcement mechanism. A domestic partner would not be able to bring his or her partner to court on a claim that they were failing to meet the obligations to which they swore when filing the partnership declaration. "Domestic partners who separate cannot take advantage of the domestic relations laws that govern divorce, alimony, child support, child custody, and equitable distribution," Cooney observed. In addition to not receiving many of the affirmative benefits accorded to married couples by the city and state, the court pointed out, as Lambda argued in its amicus brief, "the term 'domestic partner' completely lacks the social and emotive resonance of 'husband' and 'wife'" and "domestic partnerships are not given the same respect by society as a married couple, and they share none of marriage's history and traditions.'

In light of the Ohio Supreme Court's limiting construction of the constitutional language -- which could have been construed to have broader effect -- the court of appeals' ruling in the case was a foregone conclusion, and one wonders why ADF bothered bringing the case, other than to raise the flag, raise some money, and try to make some propaganda against equal rights for gay people.

ADF had also raised what seems a make-weight argument, that Cleveland exceeded its home rule power by enacting the amendment. This argument ran aground on the inconvenient fact (inconvenient for ADF, at least), that this same court had previously rejected a home rule argument that was raised to challenge a domestic partnership ordinance enacted by Cleveland Heights several years before the marriage amendment was passed. The court pointed out that the Cleveland registry, like the Cleveland Heights registry, did no more than give recognition to the relationship, providing no affirmative rights and being completely paid for by the applicants' fees so the municipalities bore no expenses from providing the registry. In addition, and most notably, no private entity is required by these ordinances to give any recognition to domestic partnerships, although it has proven that some employers and businesses have decided to adjust their policies to recognize registered domestic partners voluntarily.

Judge Christine T. McMonagle concurred in Judge Cooney's opinion. Judge Sean C. Gallagher also voted to affirm the trial judge, but without specifically concurring in the text of Cooney's opinion. He provided no explanation for his limited concurrence.

If it acts true to form, ADF will seek to appeal this to the Supreme Court of Ohio.

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