Georgia’s same-sex marriage ban

Moderated by Tom Sabulis

This week, Attorney General Sam Olens asked a judget to dismiss a federal lawsuit filed by a gay rights group challenging Georgia’s consititutional ban on same-sex marriages, established in 2004. Similar bans are being challenged with some success in other states. Same-sex marriage is legal in 19 states and the District of Columbia. Today, two local legal experts tackle the issue: one says the state ban cannot survive in the end; another writes that plaintiffs may be asking too much.

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Don’t defend Georgia’s ban

By Eric J. Segall

The United States Constitution prohibits states from denying any “person” the “equal protection of the laws.” Georgia’s Same-Sex Marriage Amendment literally violates that constitutional command by denying gay and lesbian “persons” the “equal protection” of Georgia’s marriage laws. Thus, several groups of plaintiffs, including committed couples with children, have sued the state requesting nothing more than they be granted what the Constitution specifically requires — the “equal protection of the laws.”

In Kentucky, Nevada, Pennsylvania, Oregon, and Virginia, state attorney generals have recently refused to defend state bans on same-sex marriage. These were certainly difficult political decisions but at the end of the day each one concluded that the laws were indefensible both morally and legally.

Saying that “equal justice under the law is different,” the Kentucky AG observed that “once I reached the conclusion that the law was discriminatory, I could no longer defend it.” In Oregon, the AG concluded “the [same-sex marriage] ban cannot withstand a federal constitutional challenge under any standard of review,” and in Nevada the AG said that the states’ “arguments grounded upon equal protection and due process are no longer sustainable.” The Pennsylvania AG said “I cannot ethically defend the constitutionality of Pennsylvania’s [same-sex marriage ban]. I know that in this state there are people who don’t believe in what we are doing, and I’m not asking them to believe in it. I’m asking them to believe in the Constitution.”

State bans on same-sex marriage have been invalidated by judges in red and blue states and by trial and appellate judges. This non-partisan consensus has been made inevitable by the Supreme Court’s decision in Windsor which strongly suggested, even according to Justice Scalia’s dissent, that state bans were also unconstitutional, and by the strong national consensus that gays and lesbians who desire the same monogamous, loving, and legal relationships accorded to heterosexual couples should be granted that status.

All of which brings us to Georgia’s Attorney General Sam Olens. Although he filed his answer in federal court on Monday, he still has plenty of time to decide not to defend the case. He has two stark choices. He can defend Georgia’s ban on same-sex marriage and be on the wrong side of history or he can make the right legal and moral choice and assert that as an officer of the state sworn to uphold the United States Constitution, he cannot defend a Georgia practice that is flatly inconsistent with the Equal Protection Clause of the Fourteenth Amendment.

Georgia’s motion to dismiss is full of absurd arguments that denying same-sex couples the right to marry will somehow benefit children by promoting procreation within marriage and by fostering “a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children… .” These arguments linking same-sex marriage to the welfare of children have been dismissed by one judge as “not serious,” and by the Virginia Attorney General as “disrespectful” to same-sex couples and “illogical” because giving people who love each other the sanctity of marriage has no effect on heterosexual couples or their children. The Attorney General’s arguments have been discredited again and again by other judges. It is simply too late in the controversy for the him to say with a straight face that bans on same-sex marriage promote any governmental interest other than classifying gays and lesbians as second class citizens, a position that is morally and legally indefensible.

The Attorney General has a duty not to violate the United States Constitution, and he an obligation to make that determination for himself. General Olens has argued that until a court of binding authority strikes down a substantially similar law, he must defend the laws of this state. Although that should be a strong working presumption, it is, as the decisions of numerous other AG’s show, not a conclusive one by any means. When a law is clearly and facially unconstitutional and when any and all defenses of similar laws have been rejected by numerous other courts, the Attorney General has a discretion, perhaps even a duty, not to defend.

Attorney General Olens should do the State of Georgia a great public service by not defending a lawsuit that cannot be morally or legally justified, and will not in the end be won. Mr. Attorney General, please defend the Constitution, defend what it right and just, and don’t defend this lawsuit.

Eric J. Segall is Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law.


Sprint to court reveals problems

By David Oedel

It’s hardly surprising that advocates of same-sex marriage look to the U.S. Supreme Court for help. This time around, though, those who coordinate legal advocacy for same-sex marriage may be demanding too much from any court, undermining the chance of an early legal mandate for nationwide same-sex “marriage.”

Fairly recently as constitutional things go, three big U.S. Supreme Court cases announced that court’s constitutional positions on matters of gay rights. First it was the court objecting to the targeting of gays for unfavorable legal status. Next it was the court’s rejection of states criminalizing same-sex sexual relations. Most recently it was the court’s rejection of the federal ban against recognizing same-sex marriages otherwise recognized by states.

Those cases variously defending same-sex partners were, respectively, Romer v. Evans in 1996, Lawrence v. Texas in 2003, and Unites States v. Windsor in 2013. In each case, the court revealed its inclinations for fair, equal treatment of gay and lesbian citizens. The public seems largely to have endorsed those decisions, for good reason.

But in reading the court’s tea leaves in those three cases, the advocates for same-sex marriage may be going too far to ask the courts soon to force same-sex marriage on all states, citizens and religious objectors,.

It’s one thing to say that same-sex partners should not be subjected to legal discrimination. It’s another thing for any court to dictate changes to the traditional meanings of the concept of marriage as defined by most states and their citizens — the traditional arbiters of marriage law.

True, heterosexual partners could still marry if states were ordered also to marry same-sex partners. In that sense, it’s no harm, no foul, to heterosexual partners if same-sex partners were also deemed to be married.

But perhaps there’s something legally serious about state constitutional limitations on the meaning of “marriage” as being only between opposite-gender couples. Maybe majority votes of citizens in a majority of states should be respected. Maybe the federal government should not be forcing its will on those religious adherents who view same-sex marriage as abhorrent. Maybe courts would be straining judicial power to mandate same-sex marriage for all.

People talk about a quickly shifting popular opinion on same-sex marriage. But if so, why do the proponents of same-sex marriage not go to the polls to repeal fairly recent constitutional bans of same-sex marriage in about 30 states?

By sprinting to the courts, the advocates of same-sex marriage are revealing implicitly that their cases may not be as viable in the courts of public opinion. The majority may well want to accord substantively equal legal treatment to same-sex partners. But that wouldn’t necessarily mean that a majority wants to change what marriage means. Nor does the process of wringing discrimination out of the law require the courts to dictate the meaning of marriage to every state and citizen.

Same-sex partners can probably be accorded equal rights under the Constitution without mandating that those partners be legally “married” against the will of most states and their citizens. The concept of a civil union could provide a reasonable facsimile that could be ordered in such a way as to respect the substantive rights of same-sex citizens, states and their other citizens without addressing dicey questions of federalism, the Establishment Clause and more.

Justice Anthony Kennedy in the Windsor case based part of his rationale on respect for state determinations about the meaning of marriage. Justice Sonia Sotomayor earlier this month stayed a court mandate for same-sex marriage in Utah. Even arch-liberal Justice Ruth Bader Ginsburg has expressed a desire to avoid stepping into a lingering Roe v. Wade-style controversy in the field of gay rights.

In short, civil unions can and may well be mandated as a remedy for equal protection violations without getting onto thin ice constitutionally for scant substantive significance. It would not be surprising to see the U.S. Supreme Court soon mandating civil unions. More surprising would be a mandate from the U.S. Supreme Court ordering nationwide same-sex marriage.

David Oedel teaches constitutional law at Mercer University Law School.


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