Volume 5, Number 20 | May 18 -24, 2006

Georgia Marriage Amendment Nixed
Ruling says 2004 anti-gay measure improperly tied marriage to all other partner benifits

BY ARTHUR S. LEONARD

A judge in Fulton County, Georgia, ruled on May 16 that Amendment One, approved by state voters in 2004 as an amendment to their Constitution barring same-sex marriages, was not validly enacted because it presented voters with two distinct policy issues to decide with one yes-or-no vote, violating a well-established requirement of Georgia law.

Responding to a lawsuit filed by Lambda Legal on behalf of six individual plaintiffs and one organization, Superior Court Judge Constance C. Russell said that the “popularity” of the measure was irrelevant to its validity.

Russell had refused to rule on an identical claim when Lambda Legal filed suit in September 2004, seeking to block the proposed amendment from the ballot. At that time, she found that Georgia precedents would not allow consideration by the courts of the measure’s validity until after it had been passed. Lambda reinstated its lawsuit immediately after the election results were certified.

The Georgia measure defined marriage for all purposes of state law as the union of one man and one woman but added a somewhat ambiguous paragraph that could be interpreted as barring the Legislature from creating domestic partnerships or civil unions or conferring anything that might be called a “benefit of marriage” on any “union between persons of the same sex.” That paragraph also stripped Georgia courts of jurisdiction to decide legal issues arising “as a result of or in connection with such relationship.”

This jurisdiction-stripping measure was not merely hypothetical—the city of Atlanta has a domestic partnership system that might give rise to legal disputes, and same-sex partners might have partnership agreements whose enforcement could come before the courts. A significant Georgia Supreme Court ruling from 1992 ruled on the enforceability of a property ownership agreement made by a lesbian couple at a time when the state’s sodomy law was still in effect. Such a suit might be barred from Georgia courts under Amendment One.

Lambda’s challenge to Amendment One was based on two arguments—that the amendment language appearing on the ballot seriously misled Georgia voters by creating the impression that the measure dealt only with the definition of marriage, and that the state Constitution’s “single-subject rule” was violated because voters who favored civil unions but not marriage for same-sex partners would have to vote to ban both in order to prevent gay marriage.

Russell rejected the first argument, finding Georgia law merely required that ballot language “identify which amendment they are voting on;” a voters are left to educate themselves about an amendment’s content.

However, Russell found merit to the single-subject issue, although she did not accept Lambda’s entire argument. Amendments can accomplish several goals, so long as they are germane to their central purpose, and the state contended that all aspects of Amendment One related to “the non-recognition of conjugal relationships between persons of the same sex.”

Russell agreed that this what the amendment would do, but found that the ballot question and the amendment’s text stated that banning same-sex marriage was its purpose; to the degree that the measure ventured beyond that purpose it was improperly embracing more than one policy question.

Lambda argued that the amendment had four policy objectives—to exclude same-sex couples from marriage, to prohibit recognition or creation of legal unions between persons of the same sex, to bar courts from recognizing certain official actions taken in other states and jurisdictions, and to divest courts of jurisdiction related to same sex relationships. 

Russell found that the amendment measure fell short by addressing non-marital legal relationships, such as civil unions.
“Defendant acknowledges that the provision could preclude future Legislatures from recognizing civil unions,” she wrote. “At the same time he also asserts that the word ‘union’ is interchangeable with marriage. The two propositions are, however, incompatible. If ‘union ‘ as used in the sentence is synonymous with marriage then the provision does not relate to civil unions and there is no reason to conclude that future Legislatures would be barred from creating or recognizing such unions.”

Russell pointed out that a clear meaning of the amendment’s language was to bar the Legislature from conferring any of the benefits of marriage on same-sex couples under any legal guise, not just through marriage.

“The state may decide how same-sex relationships will be treated under its tax, insurance, pension, inheritance, or other laws,” she wrote. “Those are all, in the first instance, public policy decisions which are left to the sound judgment of the citizens and the Legislature. The single subject rule does not preclude voters from making such policy judgments. What it requires is that those questions be decided without being tied to other, unrelated, issues.”

“Deciding how same-sex relationships between Georgians shall be treated by the state is not germane to the objective of recognizing only one form of marriage because it has no effect on achieving or furthering that result,” Russell concluded.

“This Court is well aware that Amendment One enjoyed great public support,” Russell wrote, acknowledging voters’ overwhelming margin for the measure in 2004. “However, the test of a law is not its popularity.”

Republican Governor Sonny Perdue responded to the ruling by decrying the effect of “activist judges.”

The governor announced he will appeal the court ruling and would call a special session of the state Legislature if the state Supreme Court does not soon act definitively to reverse the lower court ruling. There is an August 14 deadline for printing the state’s November ballot, so if the court process is not resolved by August 7, Perdue will ask legislators to craft a revised amendment.

“All these guys are running for election,” the Associated Press quoted Chuck Bowen, director of Georgia Equality, the state’s largest gay-advocacy organization, as saying. “And once again they’re going to try to use gays and lesbians as their platform.”

When Louisiana voters passed a similar amendment in 2004 and a trial judge declared it invalid on much the same grounds, the state appealed and won a reversal from the Louisiana Supreme Court, which found that the various objectives of the amendment were all relevant to the purpose of “defending” marriage.

But for now, Georgia’s Amendment One has been judged invalid.

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