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Justices: Clarify marriage ban goal
Georgia Supreme Court expected to rule on referendum
before Election Day
By SONJI JACOBS
The Atlanta Journal-Constitution
Published on: 10/19/04
Justices of the Georgia Supreme Court on Tuesday asked
pointed questions about the language of a proposed
constitutional amendment to ban same-sex marriage,
indicating they might rule on issues beyond
jurisdiction in the case.
The justices heard oral arguments for less than an hour
in a lawsuit attempting to stop a scheduled Nov. 2
referendum on the question. The jurists did not say
when they expected to issue a ruling, but both sides
anticipate one before Nov. 2.
"We think the court's questions appropriately focused
on the significant constitutional issues at stake
here," said Atlanta attorney Johnny Stephenson of
Alston and Bird, who argued against the amendment.
Justice Leah Ward Sears asked Stefan Ritter, a senior
assistant attorney general representing the state, to
explain a sentence in the amendment that reads: "No
union between persons of the same sex shall be
recognized by this state as entitled to the benefits of marriage."
Ritter said "union" is used as a proxy for "marriage."
Opponents of the proposed constitutional amendment
argue that "union" can be interpreted to mean same-sex
relationships other than marriage.
Justice Robert Benham asked whether a phrase
prohibiting the court from considering or ruling on
issues with respect to any "such relationship" would
apply to contractual arrangements between same-sex partners.
Ritter replied that the term "such relationship" refers
to a civil union or marriage but would not cover all
contractual arrangements. He said the language is not
so broad that it eliminates all rights.
His response prompted some people in the courtroom to
shake their heads. Opponents of the proposed amendment
argue that its vague language could threaten the legal
rights of same-sex couples, such as domestic partner
benefits, adoption and custody rights and the ability
to appoint medical and financial powers of attorney.
Last month, Alston and Bird, the Georgia American Civil
Liberties Union and Lambda Legal sued to halt the
referendum on the grounds that the amendment violates
the single-subject rule of the state constitution by
pertaining to issues other than marriage, such as civil
unions and Georgia courts' jurisdiction.
The lawsuit also contends that the wording of the
question on the ballot is misleading because it asks
voters about marriage only, while the wording of the
amendment itself goes beyond that.
Ritter argued Tuesday it would be premature to stop
voters from casting their ballots. He said the
amendment as written doesn't violate the single-subject
rule, and legal remedies exist after the election, if
the amendment were to be found unconstitutional.
"This is plainly an amendment to one part of the
constitution," Ritter said. "It's a single amendment."
The case was appealed to the Supreme Court after Fulton
County Superior Court Judge Constance Russell ruled the
court has no jurisdiction to stop the referendum from
taking place.
In her decision, Russell relied on the 1920 case of
Gaskins v. Dorsey, in which the Georgia Supreme Court
unanimously ruled that a constitutional amendment,
until voted upon by the electorate, is akin to a bill
going through the legislative process.
During Tuesday's hearing, plaintiff's attorney
Stephenson, questioned by Justice George Carley, argued
the Gaskins case does not apply because the proposed
amendment itself is flawed.
"Voters have a right to be free from an unconscionable
dilemma of voting on multiple subjects in a single
amendment at the ballot box," Stephenson said.
After the hearing, state Sen. Mike Crotts (R-Conyers),
the author of the amendment, called the opposition
arguments a "ploy" to deprive Georgians of the right to
vote. He said voters would not be misled by the ballot
question, which asks if marriage should be recognized
as "only the union of man and woman."
People who question the wording are "not giving the
voters credit," Crotts said. "You're saying they're not
smart enough to understand what's going on."
He added, "To have the courts step in and say the
people's voice doesn't matter is what this is all about."
State Rep. Karla Drenner (D-Avondale Estates) said the
referendum is clearly unconstitutional and the court
would not be overstepping its authority to halt it.
Drenner, the only openly gay member of the General
Assembly, is campaign chairwoman of Georgians Against
Discrimination, a coalition of groups opposing the amendment.
A poll conducted last week by Zogby International for
The Atlanta Journal-Constitution found that 61 percent
of likely Georgia voters favor a ban on same-sex
marriage and 47 percent are strongly opposed or
somewhat opposed to granting some legal rights to gay couples.
2004 The Atlanta Journal-Constitution
--
LP
"We are fighting today for security, for progress,
and for peace, not only for ourselves but for all
men, not only for one generation but for all
generations. We are fighting to cleanse the world
of ancient evils, ancient ills."
Franklin Delano Roosevelt
State of the Union Address - 1942
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