Second lawsuit filed by Alliance Defense Fund to challenge domestic partnerships under a state's "super DOMA" amendment

o8/18/09 update

08/18/09 Law Dork:

Citing to State v. Carswell, 2007-Ohio-3723, attorney Chris Geidner claims that

although [Alliance Defense Fund attorney] Langdon and his folks might think they can use this lawsuit for some fund-raising efforts, the legal success for a case challenging a status so far removed from being seen as “the equivalent of a marriage” as a domestic partner registry is very slim indeed.

08/17/09 update

In this post, I have linked to the complaint and press releases about the latest lawsuit to challenge domestic partnerships under a state's "super-DOMA" amendment. A super-DOMA amendment is an amendment to a state's constitution that bans not only same-sex marriage, but also a legal status for same-sex couples, if that status bears either any resemblance to marriage or a prohibited degree of resemblance. The lawsuit in Ohio follows a recent one in Wisconsin. The Alliance Defense Fund represents plaintiffs in both cases. Why has ADF targeted these midwestern states?

Law professor John Culhane has provided an insightful reference. In an e-mail exchange, Professor Culhane invited me to consider National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008). In this case, plaintiffs sought a declaratory judgment by the state Supreme Court that public employers do not violate Michigan constitution Art. 1, § 25, if they offer health insurance benefits to eligible same-sex partners of employees. Art. 1, § 25, states:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

Purporting to decide the case on the "plain meaning" of this language, the Court narrowly interpreted "same union," "recognize," and "for any purpose" - together with the provision's purpose ("To secure and preserve the benefits of marriage...), so that even the employer benefit in question involved recognition of a similar union for a prohibited purpose. The Court relied on dictionary definitions, and dismissed "extrinsic evidence" of intent based on the circumstances under which a majority of voters adopted the amendment. Moreover, as Professor Culhane told me, the Court

ignored rulings of other states interpreting their own super DOMAs, stating that the language was different. National Pride at Work goes further than any other case, I believe, in denying benefits based on a super DOMA.

So it's reasonable to infer that ADF - which filed an amicus brief in National Pride at Work - hopes to use this precedent to prevail in its latest challenges in Wisconsin and Ohio, even though the supra-DOMA amendments in those states expressly acknowledge allowed and disallowed degrees of similarity between unmarried couples and marriage. And Professor Culhane feels comfortable supporting this inference about ADF's strategic goal.

Initial 08/14/09 entry

08/12/09 Alliance Defense Fund press release:

CLEVELAND — Alliance Defense Fund attorneys filed a lawsuit [Cleveland Taxpayers for the Ohio Constitution v. Cleveland (Cuyahoga County Court of Common Pleas Case No. CV-09-701308)]Wednesday on behalf of taxpayers against the city of Cleveland to challenge its “domestic partner registry...”

08/13/09 press release by Equality Ohio:

Equality Ohio has announced a lawsuit that the Alliance Defense Fund (ADF) and Citizens for Community Values (CCV) have filed against the city of Cleveland, allegedly on behalf of the city's taxpayers. ADF and CCV appear to claim that the city's domestic registry violates the highlighted language of Ohio Const. Art. XV, sec. 11:

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 highlighted language represents a version of a "super-DOMA" amendment to a state constitution. A super-DOMA amendment bans not only same-sex marriage, but also a legal status for a same-sex relationship that bears some degree of resemblance to marriage, up to near equivalence in benefits and protections. (See this informative article by Joanna Grossman and Edward Stein on the "sliding scale" from marriage equality to civil unions and domestic partnerships, although Grossman and Stein don't address the sliding scale as it applies to state constitutions.)

Equality Ohio has this to say about the Ohio lawsuit:

The Cleveland Domestic Partner Registry grants absolutely none of the 1,138 federal benefits or hundreds of state benefits married couples receive. In fact, the Registry confers no legal rights or responsibilities to the same and opposite sex couples who chose to register. It is, in essence, simply a database that couples pay the City to maintain - thus benefiting the city economically and benefitting couples by easing the work necessary to prove a relationship for some voluntary benefits offered by businesses in the Cleveland area.

This is the second lawsuit of its kind - the other is Appling v. Doyle, in Wisconsin. Both lawsuits clearly show that Alliance Defense Fund will strategically target domestic partnerships wherever its attorneys think they can succeed. (I contend here that ADF gave up challenging domestic partnerships in California by the time In re Marriage cases was decided.)

08/12/09 AP / ADF Alliance Alert:

The Alliance Defense Fund said it filed the lawsuit on Wednesday on behalf of taxpayers. The alliance is also asking the court for preliminary and permanent injunctions to shut down the registry.