By Lisa Keen
Another one bites the dust: Georgia.
A state district court judge in Georgia Tuesday struck down that state’s voter-approved constitutional amendment banning same-sex marriage and legal recognition for other forms of same-sex relationships. With Nebraska’s amendment also down and hanging before a federal appeals court panel, it’s still anybody’s guess as to whether the legal winds will continue to blow down similar amendments in 17 other states.
Even in Georgia, it is unclear whether the state will seek to appeal Tuesday’s decision or try and rewrite the measure and put it back on the ballot. The latter alternative, says ACLU associate attorney Elizabeth Littrell, could have political appeal for Republicans seeking to motivate conservative voters to the polls.
The judge’s ruling in Fulton County Superior Court had been more than a year in coming and ultimately came down to a procedural issue. Judge Constance C. Russell ruled that the initiative -known as Amendment One when it passed in November 2004 seeking the constitutional amendment– violated a rule requiring that initiatives address only one subject.
In a lawsuit challenging the amendment, Lambda Legal Defense and Education Fund and the ACLU argued that it was a multi-issue ballot measure, asking voters to weigh in on same-sex marriage, legal rights for other forms of same-sex relationships, and whether to honor the U.S. Constitution’s “full faith and credit” clause when confronted with same-sex relationships recognized by other states. The ballot question itself, said Littrell, was very brief and referred only to defining marriage as between one man and one woman -not any of the measure’s other consequences.
The initiative passed with 76 percent of voters’ approval, but Judge Russell faulted the measure for allowing voters to vote only once in answer to a number of questions on which they might have different opinions.
“This Court is well aware that Amendment One enjoyed great public support,” wrote Russell. “However, the test of law is not its popularity. Procedural safeguards such as the single subject rule rarely enjoy popular support. But, ultimately it is those safeguards that preserve our liberties, because they ensure that the actions of government are constrained by the rule of law.”
“People who believe marriages between men and women should have a unique and privileged place in our society may also believe that same-sex relationships should have some place — although not marriage,” Russell wrote. “The single-subject rule protects the right of those people to hold both views and reflect both judgments by their vote.”
Littrell said that she does not believe most voters wanted to ban both same-sex marriage and other forms of legal relationships for same-sex couples.
“I don’t think the American public is as mean as the right-wing wants them to be,” said Littrell.
Republican Governor Sonny Perdue made clear he was unhappy with the district court decision but has not yet decided whether the state will appeal or take a rewritten measure back to the ballot box. An official statement said only that he is “carefully assessing the options to ensure that the will of the people will not be thwarted.”
Seven other states set to vote on such amendments this year.