Ga. argues gay marriage not ‘fundamental right’

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Georgia Attorney General Sam Olens offered a full-throated defense of the state's same-sex marriage ban on Monday, arguing in a legal brief that gay marriage should not be judicially imposed on a public that overwhelmingly rejected it.

“Plaintiffs ask this Court to declare that the people of Georgia no longer have the right to decide for themselves whether to define marriage in the way every state in our union defined it as recently as 2003,” Olens argues in the brief filed Monday afternoon.

Olens said marriage equality activists suing the state want the court to “recognize for the first time a new fundamental right to same-sex marriage.” That notion fails under court precedent in the 11th Circuit, which includes Georgia, Alabama and Florida, he said.

Olens also dismisses claims that Georgia's ban on gay marriage discriminates on the basis of sex by arguing that the “law applies equally to men and women.”

Olens hints in the brief that the tide is turning, legally, on gay marriage but that it's not up to courts to overturn the gay marriage prohibition in Georgia.

“At their core, Plaintiffs’ claims are about where the law is headed, not about where it is now. Plaintiffs may well be right that our nation is headed for a new national equilibrium on same-sex marriage. Indeed, in the last several years, at least eleven states have decided to expand their definition of marriage to include same-sex couples through the democratic process. And it seems as though each month new opinion polls are released showing increased public support for such changes in additional states. But judicially imposing such a result now would merely wrest a potentially unifying popular victory from the hands of supporters and replace it instead with the stale conformity of compulsion.”

Olens also asks U.S. District Judge William Duffey to dismiss the case for two reasons: The court lacks jurisdiction because the suit doesn't raise a federal question and that there is no plausible claim for relief under due process or equal protection clauses in the U.S. Constitution. Olens' response came on behalf of State Registrar Deborah Aderhold. The federal lawsuit, filed in April, includes defendants Brook Davidson, clerk of Gwinnett County Probate Court, and Fulton County Probate Judge Pinkie Toomer.

The 42-page response from Olens was expected. He made it clear when the challenge was filed that he would defend the ban, despite an emerging change in how courts view same-sex unions. Earlier on Monday, gay marriage activists led by Georgia Equality delivered 3,080 petitions urging Olens to drop his defense of the ban.

Olens argues in his brief that the gay marriage ban protects “the union of man and woman” in a way that supports the state's interests.

“The challenged laws define marriage as the union of man and woman. This definition furthers the State of Georgia’s legitimate interests in encouraging the raising of children in homes consisting of a married mother and father; ensuring legal frameworks for protection of children of relationships where unintentional reproduction is possible; ensuring adequate reproduction; fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children; and exercising prudence before departing from the heretofore universal definition of marriage,” Olens writes.

In a bit of a twist, Olens commends the plaintiffs suing the state yet argues that their rights do not rise above those of voters who approved a marriage ban in 2004.

“The love that Plaintiffs articulate for their partners and children is clear, as are their contributions to our society,” Olens says in the brief. “The State values Plaintiffs as its citizens, and readily acknowledges its responsibility to ensure that they, too, enjoy due process and equal protection under law. The State also respects the important, intimate, and personal choices that Plaintiffs have freely made. But the U.S. Constitution does not convert every 'important, intimate, and personal decision' into a fundamental right immune from the democratic process.”

Besides, Olens argues, gay men and lesbians can legally marry in Georgia – to opposite sex partners.

“Georgia’s marriage laws do not treat persons of different sex differently; rather, the law treats persons of different sex the same and prohibits men and women from doing the same thing – that is, marrying an individual of the same sex,” Olens argues in the brief. “There is no indication that either sex, as a class, is disadvantaged by Georgia’s marriage laws. The law simply states that opposite-sex couples can marry, while same-sex couples cannot. The law is directed towards neither males nor females exclusively, but both male and female couples seeking to enter into a same-sex marriage in Georgia, or to have an out-of-state same-sex marriage recognized by the State. Thus, the challenged laws do not discriminate based on sex or involve disparate treatment based upon sex that might invite intermediate scrutiny.”

UPDATE | Late Monday, attorneys for Brook Davidson, sued in her capacity as clerk of Gwinnett County Probate Court, argue that she must issue marriage licenses according to state law or face criminal penalties.

Defendant Davidson, as a Clerk of the Gwinnett County Probate Court, has a legal duty to abide by the laws of the State of Georgia and is required by the Georgia Constitution and state statute to issue marriage licenses in accordance with existing Georgia state law. Defendant Davidson thus has no discretion regarding the issuance of marriage licenses. At all times relevant to this litigation, Defendant Davidson acted in good faith and with reasonable belief that her office’s actions in issuing marriage licenses in conformance with existing Georgia state law were valid, necessary, and constitutionally proper. 

In the remainder of the 45-page response, attorney Van Stephens of Jenkins & Bowen argues that she is not required to address many of the specifics in the lawsuit.

UPDATE | Fulton County Probate Judge Pinkie Toomer – who delivered the oath of office Fulton Superior Court Judge, a lesbian, according to the GA Voice – filed a tempered response late Monday, arguing that it's not her role to determine the constitutionality of the state law banning gay marriages and prohibiting her from issuing marriage licenses to same-sex couples.

“Plaintiffs’ Complaint fails to state a claim against Judge Toomer upon which relief can be granted since as a judicial officer Judge Toomer is required to comply with state statutes and the Georgia Constitution.”

“At all times Judge Toomer has acted in good faith, in compliance with Georgia Law and in conformance with her obligations under the Georgia Code of Judicial Conduct and her oath of office.”

Toomer is represented by Kaye Woodard Burwell, a deputy attorney for Fulton County.



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