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| Gay Rabbi Josh Lesser spoke during a rally Wednesday at the state
Capitol. Straights in Solidarity With Gay & Lesbian Civil Rights, a group
opposed to Amendment 1, organized the noon rally. (Photo by R.O. Youngblood) |
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HOME > NEWS > LOCAL
By: RYAN LEE
COMMENTS |
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Last-minute hopes of blocking Georgia’s gay marriage amendment from the
ballot fell flat Oct. 26, when the state’s highest court declined to rule
on the constitutionality of the proposed ban before voters have their say.
After a brutal 10-month battle, waged from the halls of the General Assembly
to the streets of Atlanta and finally to the judiciary, the measure dubbed Amendment
1 now heads to the Nov. 2 ballot.
Opponents plan a flurry of outreach leading up the vote, but it is expected
to easily pass. A recent Zogby International/Atlanta Journal-Constitution poll
found that more than 60 percent of likely Georgia voters intend to vote in favor
of the measure.
“Our plans remain the same, despite the ruling,” said gay state
Rep. Karla Drenner (D-Avondale Estates), campaign director for Georgians Against
Discrimination, a coalition fighting Amendment 1.
“We’re continuing to warn voters about the potential impact of
the amendment on Georgia’s families,” Drenner added.
The Georgia Supreme Court ruled 5-2 that it does not have the authority to
strike Amendment 1 from the upcoming ballot, but left the door open to a post-election
challenge.
“The judiciary is vested with the power to determine the constitutionality
of legislation, but at present there is simply no legislation which can be the
subject of a constitutional attack,” Justice George H. Carley wrote for
the majority. “The election has yet to be held, and the amendment thus
remains only a proposal.”
The majority opinion affirmed the Sept. 29 ruling by Fulton County Superior
Court Judge Constance Russell that the principle of separation of powers prohibits
Georgia courts from intervening in “legislation while it is in the process
of enactment.”
Seven plaintiffs — represented by the ACLU of Georgia, Lambda Legal Defense
& Education Fund and law firm Alston & Bird — filed suit on Sept.
16 seeking to strike Amendment 1 from the ballot on the grounds that it violates
the Georgia Constitution’s single-subject rule by packaging multiple subjects
into a single amendment.
If faced with the question as crafted, voters who support a heterosexual definition
of marriage, but also are in favor of rights being extended to same-sex couples,
will not be able to vote their conscious, argued Johnny Stephenson, a partner
with Alston & Bird and lead counsel for the plaintiffs.
Neither Russell nor the high court addressed the merits of that complaint,
instead citing a 1920 Supreme Court ruling known as Gaskins v. Dorsey that prevents
courts from getting involved until the legislative process is complete.
“I’m disappointed the court didn’t act to remove the amendment
from the ballot, but I take comfort knowing their decision was based on Gaskins
and left the case open for a post-election challenge,” Drenner said.
Conservatives lauded the ruling, even while recognizing the potential for a
post-election challenge if it is approved.
“The legislature makes the law based on the support of the people —
it is their place to make the law, it is the role of the judiciary to interpret
the law,” said Todd Young, policy director for the Southeastern Legal
Foundation, a conservative legal group. “And we don’t have a law
right now to be interpreted.
“The court, I think, went to some pains to say that the merits of whether
the single-subject rule is violated here in this amendment cannot be decided
at this time,” Young added.
Sadie Fields, chair of the Christian Coalition of Georgia, shepherded the amendment
through the General Assembly earlier this year. Fields, who has a lesbian daughter,
refused to comment to Southern Voice, but told other media outlets that she
was pleased with the ruling.
Chief Justice Norman Fletcher and Justices Harris Hines and Hugh Thompson joined
Carley in the majority, with Justice Carol Hunstein writing a concurring opinion.
Presiding Justice Leah Sears and Justice Robert Benham dissented.
Only the first sentence of the amendment will appear on the Nov. 2 ballot:
“Shall the constitution be amended so as to provide that this state shall
recognize as marriage only the union of man and woman?”
Section B, which will not appear, states: “No union between persons of
the same sex shall be recognized by this state as entitled to the benefits of
marriage.”
Opponents argue Section B will have wide-ranging effects, from civil unions
and domestic partner benefits to parental rights and hospital visitation for
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