Gay marriage ban upheld

State Supreme Court reinstates Constitutional amendment

By SONJI JACOBS
The Atlanta Journal-Constitution
Published on: 07/06/06

Georgia's amendment banning gay marriage is constitutional, the state's highest court ruled Thursday.

The decision effectively reinstates the ban, which was thrown out by a lower court judge in May.

The state Supreme Court justices ruled that the amendment to the state constitution, approved by 76 percent of voters in November 2004, does not violate the single-subject rule by addressing other issues such as civil unions in addition to marriage.

Supporters of the ban, including Gov. Sonny Perdue, hailed the decision as an example of the court not overstepping its bounds.

"We don't do a referendum very often," Perdue said. "But when we do a referendum such as a Constitutional amendment, I think we need be very respectful of the people's voice and listen to that. I think the Supreme Court has done that and I'm very grateful for their action and their affirmation of the people's voice in overturning the trial court's opinion."

The governor also said that he hopes gay Georgians do not feel marginalized by the decision. He said they are free to work and live their lives here - they simply can not marry in the state of Georgia.

Georgia Attorney General Thurbert Baker, in a press release, also praised the ruling.

"Today's decision by the Supreme Court was the correct one. 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 vigorously defended the people's voice on this issue, and I am pleased with the court's ruling respecting the voters' choice," Baker said.

Perdue had vowed to call a special session of the General Assembly in August if the high court did not reinstate the ban. The governor said he would have asked state lawmakers to craft a new amendment banning gay marriage with language that could withstand the court's scrutiny.

Opponents of the ban expressed deep disappointment over the court's decision. They had argued for months that the amendment could be interpreted to prohibit the Legislature from in the future allowing civil unions between same-sex couples. Georgia law does not currently recognize civil unions.

The American Civil Liberties Union, Lambda Legal, a national gay rights organization, and the Atlanta law firm of Alston and Bird first joined forces against the amendment by filing a lawsuit seeking to prevent the measure from appearing on the 2004 general election ballot.

The attorneys argued that the ballot language was misleading, and that the amendment was not specific to only the issue of marriage. The court refused to stop the question from appearing on the ballot, and an overwhelming majority of Georgia voters gave the ban their seal of approval.

The attorneys teamed up again and challenged the amendment after it was approved on the grounds it violated the single subject rule of the state Constitution.

Fulton County Superior Court Judge Constance Russell in May created a political firestorm when she threw out the ban, agreeing with opponents that the ban was unconstitutional.

Russell did not rule on the merits of allowing gay couples to marry. Instead, she said the measure violates the state constitution's single-subject rule because it required voters to decide on marriage and civil unions in a single amendment.

Russell, a former Fulton prosecutor and Atlanta school board attorney who was appointed to the court in 1996 by then-Gov. Zell Miller, acknowledged in her opinion that most Georgia voters approved the amendment. But, she said, "the test of a law is not its popularity."

Similar lawsuits challenging gay marriage amendments on the grounds of violating the single-subject rule have failed.

In its 4-2 decision, the court said that "whether such marriages should be recognized is a question to be addressed by the legislature."

"We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives," Judge Robert Smith wrote.

The court heard arguments in May in an omnibus case involving four different lawsuits brought by 44 homosexual couples. The cases decided Thursday were filed two years ago after the Massachusetts decision that legalized same-sex marriage in that state.

In New York, the mayor of the village of New Paltz married about two dozen same-sex couples in February 2004.

Only six justices were on the bench to hear the combined cases. Justice Albert Rosenblatt, considered by many a swing vote, recused himself because his daughter has advocated for same-sex couples in California.

Gov. George Pataki's health department and state Attorney General Eliot Spitzer's office had argued that New York law prohibits issuing licenses to same-sex couples. The state had prevailed in lower appeals courts.

In her dissent, Chief Judge Judith Kaye said the court failed to uphold its responsibility to correct inequalities when it decided to simply leave the issue to lawmakers. She noted that a number of bills allowing same-sex marriage have been introduced in the legislature over the past several years, but none has ever made it out of committee.

"It is uniquely the function of the judicial branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation," Kaye wrote.

"The court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy," she added. "I am confident that future generations will look back on today's decision as an unfortunate misstep."

Reaction to Thursday's ruling came quickly from both sides of the same-sex marriage issue.

Jeffrey Trachtman, co-counsel with the Lambda Legal Defense and Education Fund representing the five homosexual couples that sued New York City after being denied marriage licenses, said: "While the outcome is obviously disappointing, the case for equality will now be redoubled at the legislative level.

"We are pleased to have moved the debate forward on this important issue of civil rights and take heart in the fact that during the course of the litigation, New Yorkers' public support for equal marriage rights has grown from 47 percent to 53 percent," Trachtman added.

Ron Zacchi, co-executive director of Marriage Equality NY, told Cybercast News Service that his organization disagrees with the court's decision. "We feel it's a disgrace that they continue to allow discrimination and not equal protection under our state constitution for gays and lesbians and our families.

"A lot of judges hearing the case were very conservative, and their decision may be affected by their conservative views and not really take into account that the constitution was created to protect people not to discriminate," Zacchi said.

Still, "if the courts won't uphold the way we see the law to be, then we will work with the lawmakers to change the laws," he noted. "We look forward to government officials like Mayor Bloomberg who has spoken in the past to lead the way to Albany and to start working legislatively to get this changed because our families need equal protection."

'A good day for the revolution'

However, Rev. Bill Banuchi, executive director of the New York state chapter of the Christian Coalition, told Cybercast News Service he believes the decision "is restoring sanity to our judicial system. We are pleasantly surprised to see that they came down preserving the traditional definition of marriage."

"There is no question that the popular opinion is a rejection of same-sex marriage," Banuchi said. "There are amendments in 19 or 20 states now where the people themselves have rejected same-sex marriage.

"In a sense, this is a reflection of not only the integrity of our constitution, but also a reflection of the will of the people and a sign to let the judicial activists know that they do not have the authority -- and the people will not allow them -- to change the intent and the definitions of the words contained in our constitution," he added.

Banuchi agreed with Trachtman on one item, that the debate over same-sex marriage will continue for some time to come.

"The only real solution will be a federal marriage amendment because we believe there are forces that will not stop as long as there is any chance for them to advance their agenda," Banuchi stated. "That's why we are pushing, not only on a state level, but also for a federal marriage amendment."

"You can't have 50 different states with 50 different definitions of marriage," he added.

"We are pleased that this latest attempt by the homosexual agenda to radically redefine our culture has been stopped dead in its tracks," said Mathew Staver, founder and chairman of the conservative Liberty Counsel.

"The court of appeals agreed with millennia of human history regarding traditional marriage," Staver added. "To recognize marriage between people of the same sex would result in making gender irrelevant, and the abolition of gender would have devastating effects on children."

James Lafferty, a spokesperson for Traditional Values Coalition, told Cybercast News Service he considered the New York ruling as "just based on a literal interpretation of the law. We forget, but that's what courts are supposed to do."

"It says something very bad that when judges do what they are supposed to do and rule according to the law, we are all sort of surprised," Lafferty said.

"I think there will be a big outcry from the homosexual community in New York City and in some of the urban areas of New York with all sorts of cries of hatred, but in fact if the legislature acts, I think it will have to listen to the will of the entire state, and that is very definitely against homosexual marriage," he noted.

"This is a good day for the revolution," Lafferty added.

(Cybercast News Service Correspondents Alison Espach and Kathleen Monaghan contributed to this report.)