In the Public Square: Responsible Voices on Family Issues
The Georgia Marriage Decision: Are state marriage amendments at risk?
by William C. Duncan
In November 2004, along with the voters in eleven other states, Georgians approved an amendment to their state constitution defining marriage as the union of a man and a woman and making clear that equivalent legal statuses (like civil unions) would not be recognized in the state.
After the vote, a small group of citizens sued the state arguing that the voters could not have understood the measure properly because (1) the language on the ballot describing the amendment was unclear and (2) the amendment dealt with more than one subject. On this second argument, they pointed to a provision in the Georgia Constitution which requires that all proposed amendment include only one subject. This is called the single subject rule.
On Tuesday, May 16th, a judge in Atlanta ruled in the case some eighteen months after it was filed. In regards to the first claim, the court held that ballot language needed only to identify which amendment voters were voting on and the language for this amendment accomplished that result.
The judge’s ruling on the single subject rule was more complicated. The court identified the purpose of the amendment as “the acknowledgment of the union of man and woman as the only valid form of marriage in Georgia.” The court noted that an amendment addressing multiple topics does not violate the single subject rule as long as it has one objective and all topics are germane to the accomplishment of that objective. The court believed that the first, third and fourth sentences were germane to the amendment’s purpose. The first sentence was fine because it defined marriage. The third and fourth were approved because they “serve to invalidate other forms of marriage [which] furthers the public policy of acknowledging only one form of marriage as legitimate and valid.”
The court then turned to the second sentence which reads: “No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage.” The court assumed from the use of the word “union” that the legislature must have intended to address the status of “civil unions.” The court did not, however, note that where the term civil union is used in state law (Vermont and Connecticut) it means a legal status exactly like marriage in all but name.
Instead, the court read the sentence very broadly, arguing that its objective was “to ensure that unions between persons of the same-sex–without restriction–are not afforded any of the advantages, rights or privileges afforded to married same-sex couples under state law.” The court believed that individuals could support the definition of marriage but that doing so did not require “a decision as to the treatment of same-sex relationships within the state.” The decision did not, however, explain why the relevant test should be whether the purpose of the amendment required the sentence. A better test would seem to be whether the test was germane to the intent of the legislature who drafted the amendment.
Since the amendment was approved with such a wide margin, it seems very unlikely that the voters were unable to understand its meaning. The court’s overly broad reading of the amendment makes it very likely that the decision will be reversed on appeal and the attorney general and governor have already announced that they will appeal the ruling.
What does this mean, then, for the amendments in other states? Probably very little. Single-subject challenges to state marriage amendments have already been rejected by courts in Kentucky and Louisiana. In fact, similar to today’s decision, the Louisiana amendment was struck down by a trial court. The Louisiana Supreme Court, however, unanimously reversed that decision on appeal.
Court decisions like the one from Georgia make clear, though, that the need for marriage amendments is still acute.
Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org)
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