Georgia keeps ban on gay marriage

State justices rule amendment passed in 2004 constitutional

By Sonji Jacobs, The Atlanta Journal-Constitution, July 7, 2006

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.

Opponents of the measure argued that the ban violated the state constitution's "single-subject rule" because it addressed not only marriage, but also civil unions.

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.

Supporters of the ban, including Gov. Sonny Perdue, hailed the decision.

"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."

Gay Georgians were disappointed by the court's ruling.

"It really does represent a setback for achieving equality," said Tricia Page, 34, of Decatur, who works for Emory University's newborn screening program. "For me it's a very clear civil rights issue. People should have the same protections under the law. Discrimination against gay families clearly violates that principle."

Perdue had vowed to call a special session of the General Assembly in August if the high court did not reinstate the ban. He said he planned to ask state lawmakers to craft a new amendment that could withstand judicial scrutiny to be placed on the November general election ballot.

Perdue, at a press conference Thursday at the state Capitol, said he was relieved not to have to call the Legislature back to Atlanta this summer. The governor also said that he hoped gay Georgians would not feel marginalized by the decision.

"I don't think it demeans gay Georgians in any other way," Perdue said. "They're free to work and live their lives; they're just not free to marry in Georgia."

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.

What's unclear in Thursday's ruling is if the amendment bans unmarried couples and same-sex couples from receiving any of the benefits given to married men and women, such as health insurance benefits or inheritance rights. Most legal experts said the state Legislature and the court may have to step in to either clarify the law or decide individual cases.

"The court's opinion in our judgment does not say the state Legislature is prohibited from giving this or that individual benefit to unmarried persons," said Monte Stewart, president of the Marriage Law Foundation, a nonprofit group that works to protect traditional marriage. "What the marriage amendment does prohibit is the creation of a marriage-like legal arrangement where all of the benefits of marriage are given to people other than a married man or woman."

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.

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.

After the General Assembly approved the amendment, the American Civil Liberties Union of Georgia; Lambda Legal, a national gay rights organization; and the Atlanta law firm of Alston and Bird joined forces to file a lawsuit seeking to prevent the measure from appearing on the ballot.

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

The attorneys then teamed up again, challenging the amendment in a trial court on the same grounds. Fulton County Superior Court Judge Constance Russell created a political firestorm when she threw out the ban in May, agreeing with opponents that the ban was unconstitutional.

"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."

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