Different River

”You can never step in the same river twice.” –Heraclitus

May 26, 2006

Georgia Judge Declares Constitution Unconstitutional

Filed under: — Different River @ 12:39 am

Yes, you read that right. Reuters reports:

ATLANTA (Reuters) – A Georgia judge on Tuesday struck down a ban on same-sex marriage that was approved by voters in 2004, saying it violated the Southern state’s constitution.

What Reuters calls a “ban” was in fact a constituational amendment. An amendment to the Georgia State Constitution. The judge declared this part of the Georgia State Constitution to be a violation of the Georgia State Constitution.

Here’s the “reasoning”:

Judge Constance Russell of Fulton County Superior Court ruled that the measure violates the state’s “single-subject rule” as it asked voters to decide on multiple issues in one amendment, said Jack Senterfitt, an attorney with gay rights group Lambda Legal Defense.

Now I can see the logic of having a “single subject rule.” But there are two problems with this. First, the amendment deals with only a single subject. And second, the Georgia Constitution specifically allows “related” issues to be considered together in one amendment.

Here’s the full and complete text of the proposed amendment:

Article I of the Constitution is amended by adding a new Section IV to read as follows:


Paragraph I. Recognition of marriage. (a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state.
(b) 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 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 or 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.”

Could someone please identify for me the more-than-one issues in that amendment? It seems to be that the two issues to be decided are

  1. A requirement that the state recognize only marriages that consist of one man and one woman, and
  2. A requirement that the state recognize only marriages that consist of one man and one woman.

Can someone please explain the difference?

I can’t find the judge’s decision online (yet — the court’s home page is here), but Arthur Leonard of Gay City News has some more details on the attempt to carve out two subjects in that amendment:

The Georgia measure defined marriage for all purposes of state law as the union of one man and one woman but added a somewhat ambiguous paragraph that could be interpreted as barring the Legislature from creating domestic partnerships or civil unions or conferring anything that might be called a “benefit of marriage” on any “union between persons of the same sex.” That paragraph also stripped Georgia courts of jurisdiction to decide legal issues arising “as a result of or in connection with such relationship.”

Lambda’s challenge to Amendment One was based on two arguments—that the amendment language appearing on the ballot seriously misled Georgia voters by creating the impression that the measure dealt only with the definition of marriage, and that the state Constitution’s “single-subject rule” was violated because voters who favored civil unions but not marriage for same-sex partners would have to vote to ban both in order to prevent gay marriage.

[Judge] Russell rejected the first argument, finding Georgia law merely required that ballot language “identify which amendment they are voting on;” a voters are left to educate themselves about an amendment’s content.

However, Russell found merit to the single-subject issue, although she did not accept Lambda’s entire argument. Amendments can accomplish several goals, so long as they are germane to their central purpose, and the state contended that all aspects of Amendment One related to “the non-recognition of conjugal relationships between persons of the same sex.”

Russell agreed that this what the amendment would do, but found that the ballot question and the amendment’s text stated that banning same-sex marriage was its purpose; to the degree that the measure ventured beyond that purpose it was improperly embracing more than one policy question.

Lambda argued that the amendment had four policy objectives—to exclude same-sex couples from marriage, to prohibit recognition or creation of legal unions between persons of the same sex, to bar courts from recognizing certain official actions taken in other states and jurisdictions, and to divest courts of jurisdiction related to same sex relationships.

Russell found that the amendment measure fell short by addressing non-marital legal relationships, such as civil unions.

So we are expected to believe that “same sex marriage” and “same-sex civil unions” are two separate topics. Are they serious? Can they find a single context in which anyone — judge or otherwise — discusses “same-sex civil unions” without any reference to “same sex marriage”?

And even if those are, in some technical sense, separate legal issues, the consideration of related issues in a single constitutional amendment is specificall permitted in the Georgia Constitution. Article X, Section I, Paragraph II states in part:

If such proposal is ratified by a majority of the electors qualified to vote for members of the General Assembly voting thereon in such general election, such proposal shall become a part of this Constitution or shall become a new Constitution, as the case may be. Any proposal so approved shall take effect as provided in Paragraph VI of this article. When more than one amendment is submitted at the same time, they shall be so 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.

Any reasonable reading of the last clause above should specifically permit “related changes” like “same sex marriage” and “same-sex civil unions” to be considered together — even if they are amending difference articles of the Georgia Constitution. (As it happens, the proposal amended only one article, by adding a single section with a single paragraph.)

This judge’s decision literally defies the plain meaning of the English language. It would be no less logical to claim that the “freedom of speech” clause of the U.S. Constitution actually mandated censorship. And the fact that a judge deliberately misread the constitution to overturn a vote that was specifically designated as an amendment to that constitution — that is, specifically intended to remove the issue from the discretion of the courts — and that was passed by 76% of the voters, can only show the deep contempt in which this judge, and likely a significant proportion of judges throughout the country, hold the voters.

UPDATE (7/7/2006):

The Georgia Supreme Court has overruled the lower court and allowed the amendment to stand,

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