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July 06, 2006

Georgia Same-Sex Marriage Amendment Upheld

The constitutional amendment stands.

The Georgia Supreme Court's decision Thursday upholding a constitutional ban on same-sex marriage capped a two-year battle that mobilized the gay community, brought conservative voters to the polls in 2004 and threatened to become a politically charged issue in this year's election.

The state's highest court unanimously affirmed the constitutional amendment - approved by 76 percent of voters in 2004 - that defines marriage as the union of a man and a woman.

The amendment was appealed on the grounds that it violated Georgia's rule that constitutional amendments must deal with one topic only; the "single subject rule". Opponents said it dealt with both marriage and civil unions, thus more than one subject. The Georgia Supreme Court ruled, rightly in my opinion, that there truly was one subject.
But Justice Robert Benham, who was appointed to the court in 1989 by then-Gov. Joe Frank Harris and wrote the short, six-page opinion, refuted that claim. He wrote that the objective of the amendment is "reserving marriage and its attendant benefits to unions of man and woman."

He went on to say that the prohibition against civil unions was not "dissimilar and discordant" with that objective.

The decision ends the opponents' appeal process on the "single-subject rule" issue.

The single subject rule was to keep unrelated items from appearing in the same amendment, but this was a single subject--marriage--dealt with on two fronts, not two subjects.

As has been the case all over the country, same-sex couples have been using the courts to get their way rather than using the legislative process. (See here for another example of some courts rightly pushing this to the legislature, and Democrats reliably upset that their hopes of ruling by judicial fiat have been dashed. Legislation has become the fall-back position rather than the front line.) This is why an amendment was necessary; to meet them on the playing field of their own choosing.

Both gay marriage and civil unions were already illegal in Georgia. Supporters of the amendment said that defining marriage as the union of a man and a woman in the state Constitution would make it harder for judges to overturn the law.
Not impossible, for a judge enamoured with the whole "it's a living document which means what I want it to" mentality, but certainly harder. Opponents of the amendment have no one to blame for requiring this step but themselves. Some people, however, either still don't get it, or are playing things up for their own base.
Chuck Bowen, executive director of Georgia Equality, a political advocacy group dedicated to gay rights, said while he is disappointed with the decision, he is pleased that gay marriage most likely will not be a big election issue this year.

"Our families and our lives should never be used to pander for votes," Bowen said.

This had absolutely nothing to do with pandering. Sure, it revved up the conservative base, but again that was a response to legal moves being made by same-sex marriage proponents. They forced the issue, not conservatives or Republicans or the Religious Right.

Here's an interesting line in the story:

The constitutional amendment banning gay marriage first came before the General Assembly in 2004 and immediately became the most controversial and emotional issue debated by lawmakers that year.

"Controversial" only in the sense that it brought rather loud opponents out of the woodwork. Those were the folks stirring controversy. Something that passes with 76% of the vote is hardly controversial.

This sums it up well:

"Today's decision by the Supreme Court was the correct one," state Attorney General Thurbert Baker said in a statement. "The people of Georgia overwhelmingly ratified the constitutional amendment stating that marriage should be reserved for a union between a man and a woman. I am pleased with the court's ruling respecting the voters' choice."

That difficult fact is why same-sex marriage proponents have decided to do an end-run around the people's representatives and shop for a small group of favorable judges. And that is why this amendment became necessary. Alleged "pandering" had nothing to do with it. If you want to debate in the legislature, that's where the debate will take place. If you try to sneak it in via some sympathetic judges, don't be surprised or upset in the slightest when you're met on that field as well. That is where the Left is taking the cultural and social issues, and that's where we have to deal with them, even if, as I believe, this isn't the place for them. They chose this venue, so they better learn to live with the outcome.

Posted by Doug at July 6, 2006 09:34 PM

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Well said.

Andrew Sullivan got his claws out for the Georgia ruling:

"Georgia wants its gays like it once wanted its blacks: segregated from integration into "normal" families, even if they have been born into them. And, yes, many thought that was rational for a very long time as well."

Ooohhh, that one hurt. Go figure. A militant gay scribe thinks Georgia is backwards for refusing to legitimize his lifestyle.

They're losing in legislatures, they're now losing in the courts, and they're getting catty about it. Lashing out is all they have left.

Posted by: RightOnPeachtree at July 6, 2006 11:54 PM

The argument that this law involved two issues at a time does appear unconvincing. However, I am sure that the Georgia constitution is required to be consistent with the United States Constitution which would be a higher authority. Of greater concern is the 14th Amendment to the Constitution, Section 1 which reads:

" Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
You see what concens me about these laws is the attempt to "abridge the privileges" of homosexuals. Or certainly to deny homosexuals within that jurisdiction of "the equal protection of the laws."

You flippantly suggest some type of attempt by individuals to do an end-run around the legislature by going to courts. But it is the courts who will protect minority rights when they are being trampled on by the majority. While much discussion is made about the "defense of marriage", in reality it is the design of this legislation to create a sub-class of citizens who are being denied the "life, liberty, and pursuit of happiness" that is being guaranteed to the rest.

I am not a lawyer so that is just one citizen's take on the subject.

Posted by: Robert Freedland at July 7, 2006 12:32 AM

Homosexual men have precisely the same rights to marry a woman that straight men do, and homosexual women have precisely the same right to marry a man as straight women do. There is no sub-class. There is no lack of protection. There is no abridement of privileges.

Now, you may want to argue that homosexual men don't want to marry a woman, they want to marry a man. That, in the history of this and virtual all countries and cultures on this planet, is not what marriage has meant, legally or culturally. This is a new right that is being sought, not an old one that needs protection. This is not a job for the judiciary, and that is not a flippant suggestion.

And there are plenty of polyamorists waiting in the wings waiting for their turn to claim that their happiness, by being married to 2 men and 3 women, is being thwarted and their rights are being abridged. If you argue that marriage is currently not legally specified as being between a man and a woman, they will argue that no mention of a number is in there either. Constitutional amendments like this are intended to address those issues for a society that has lost its way.

Posted by: Doug Payton at July 7, 2006 09:41 AM

I must be really stupud, but how can a state constitutional amendment be declared "unconstitutional" by the Georgia supreme court?

Isn't the constitutional amendment supposed to be to declare a change in the rules the justices are supposed to rule by?

Posted by: Tony at July 7, 2006 12:36 PM

Not "unconstitutional". The court could have ruled that the amendment proposal did not follow the requirements regarding subject matter, form, etc. If they had ruled against it, the proposed amendment would not have been added to the state Constitution, and thus judges would not be bound by it. By ruling for it, it will now be added, barring any other possible challenges.

Posted by: Doug Payton at July 7, 2006 12:44 PM

Thank you for providing dialogue on this issue. I advocate for more freedom in America and not less.

Posted by: Robert Freedland at July 9, 2006 12:19 AM