July 14, 2006

Georgia top court: Marriage and CUs are the same

Panel upholds marriage ban amendment that was challenged under two-subject rule

by Eric Resnick

Atlanta--The Supreme Court of Georgia had unanimously decided that the state�s constitutional ban on same-sex marriage doesn�t break a �two-subject� rule, and that civil unions are effectively the same as marriages.

The expedited July 6 decision puts the 2004 amendment back in force, and keeps the state�s Republican governor from putting a replacement on this year�s ballot to draw socially conservative voters.

The seven-member panel overturned a Fulton County Superior Court ruling in May that the measure violates a different part of the state constitution that bars amendments from having more than one subject.

However, in order to do that, the court had to find no effective difference between same-sex marriage and same-sex �conjugal relationships,� regarding benefits.

Neither decision judges the merit of the amendment, nor the issue of same-sex marriage.

Like Ohio�s, the Georgia amendment has two parts. The first bans marriage, the second bars recognition of other unions. The amendment begins: �This state shall recognize as marriage only the union of man and woman. Marriages of persons of the same sex are prohibited in this state.�

The second paragraph, much longer than Ohio�s, reads: �No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give any public effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties� respective rights arising as a result of or in connection with such relationship.�

In the overturned ruling, Superior Court Judge Constance Russell of Fulton County (Atlanta) ruled that the two paragraphs dealt with different issues--the first with marriage, the second, in its first sentence, with the possibility of civil unions, which she saw as different subjects.

Russell wrote that the measure--passed by 76 percent of the voters--violates another section of the constitution that says: �When more than one amendment is submitted at the same time, they shall be submitted as to enable the electors to vote on each amendment separately, provided that one or more new articles or related changes in one or more articles may be submitted as a single amendment.�

Same-sex couples, clergy, members of the legislature who support civil unions and their allies argued that civil unions and marriage are not the same and should not be treated by the court as the same.

The state argued otherwise.

Writing for the high court, Justice Robert Benham penned, �It is apparent that the prohibition against recognizing same-sex unions as entitled to the benefits of marriage is not �dissimilar and discordant� to the objective of reserving the status of marriage and its attendant benefits exclusively to unions of man and woman.�

Benham reasoned that the purpose of the amendment is to reserve a status exclusively for different-sex couples and that �exclusiveness is the essence of the amendment�s purpose.�

The matter became one of the hottest issues in this year�s election, with Republicans, led by GOP governor Sonny Perdue threatening to call a special legislative session to put the amendment the ballot again, if the court did not uphold it by August 7. This caused speculation that the GOP may have purposely backed the constitutionally shaky original measure two years ago in order to benefit again from it this year.

The state�s Republican Party has also made the issue into an assault on Democrats, calling the courts the �last hope� of the Democratic Party.

The Georgia judiciary is officially non-partisan, but five of the seven justices, including Benham, are conservative Democrats, first appointed by the anti-gay former Democratic governor Zell Miller.

Three of them, Presiding Justice Carol Hunstein and Justices George Carley and Hugh Thompson, are running for re-election in November.

The other Democrats are Chief Justice Leah Ward Sears and Justice P. Harris Hines.

The lone Republican, Justice Harold Melton, did not participate, as he served as Gov. Perdue�s executive counsel before being appointed to the high court in July, 2005. Fulton County Superior Court Judge F. Larry Salmon sat in his place.

The decision was the first state supreme court ruling upholding an anti-marriage amendment. A similar challenge under a single-subject rule is pending in Kentucky, where a trial judge has upheld the amendment.

A federal judge struck Nebraska�s amendment based on its denial of the possibility of constitutional protection to gays and lesbians. That ruling has been appealed.

The scope of Ohio�s ban amendment is being challenged in courts throughout the state, but no case challenges the constitutionality of the amendment itself.

The Georgia court�s inability to distinguish between marriage and �same-sex conjugal relationships� will likely affect the future decisions of other state courts, including Ohio�s.

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