Judge: Georgia gay marriage lawsuit to advance

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A federal judge on Thursday tossed out Georgia's efforts to stop a lawsuit over the state's gay marriage ban, paving the way for the legal challenge to continue. 

The 49-page ruling from U.S. District Judge William Duffey, Jr., came a day before the U.S. Fifth Circuit Court of Appeals in New Orleans hears arguments in gay marriage lawsuits from Texas, Mississippi and Louisiana. Duffey's ruling rejected a motion by Attorney General Sam Olens to dismiss the lawsuit, which was filed by Lambda Legal last April.

Duffey (photo) sided with the plaintiffs – nine gay Georgians; four gay couples and a lesbian widow – who argued that banning gay marriages humiliates the children of same-sex couples.

“At this stage of the proceedings, the Court is required to accept these facts as true and consider the allegations in the Amended Complaint in the light most favorable to the Plaintiffs. In light of these allegations, and Defendant's conclusory allegations of the relationship between Georgia's marriage laws and the State's asserted interests in procreation and child welfare, the Court concludes that Defendants' Motion to Dismiss the Amended Complaint, at this stage of the litigation, is required to be denied.”

Duffey also undercut some arguments in Olens' defense of the marriage ban.

“Defendants' Motion to Dismiss the Amended Complaint does not address how Georgia's asserted interests in child welfare and procreation are advanced by the State's prohibition on same-sex marriages, and the State's refusal to recognize lawful marriages performed in other States.”

But Duffey stopped short of agreeing with Lambda, which argued that same-sex couples enjoy a fundamental right to be married.

“The fact is that Plaintiffs here and in other cases across the country are seeking to apply existing Supreme Court authority to expand the right of opposite-sex marriage to include marriage of persons of the same-sex. Put another way, they assert that there is, under the Constitution, a fundamental right of any two adults to marry. The Court declines to extrapolate a fundamental right to marry a person of the same sex from the line of Supreme Court decisions discussed [in his ruling]. The Court concludes that the Supreme Court's decisions regarding the fundamental right to marry are confirmed to members of the opposite sex – a conclusion that is confirmed by the decisions of the Supreme Court.”

Duffey was more clear elsewhere in his ruling.

“The Court concludes that Georgia's marriage laws do not implicate a fundamental right to marry a person of the same sex.”

The judge also wrote that the state's marriage bans – a legislative one enacted in 1996 and a Constitutional amendment approved by voters in 2004 – do not constitute “discriminations of an unusual character.”

“Unlike DOMA, Georgia's marriage laws were not passed to change the kind and concept of marriage or marriage options that had been observed in the State for decades. Georgia did not allow same-sex marriages or recognize same-sex marriages performed in other States before the legislature enacted [the state law banning gay marriage] and the voters amended and ratified [the amendment to the state Constitution].”

Lambda applauded the ruling and said it's a step in the direction of bringing marriage equality to Georgia. 

“We are delighted that the Court will allow this case to continue,” Tara Borelli, a senior attorney in Lambda's Atlanta, said in a statement. “We look forward to our day in court to demonstrate Georgia’s marriage ban is unconstitutional and relegates the state’s same-sex couples to a second-class status that keeps them and their families vulnerable.”

Beth Litrell, a senior attorney also in Lambda's Atlanta office, told the GA Voice that she's “elated” over Duffey's ruling.

“The ruling gives our plaintiffs and all same-sex couples the opportunity to be heard in court and ensures Georgia is on the right path of history sooner rather than later,” she added.

It’s fair to say Duffey “recognizes the writing on the wall,” Litrell added.

“Even where his decision includes some reasoning we disagree with … such as the fundamental right to marry … at end of day he has tasked the state with showing how denying same-sex couples the right to marry furthers the state’s interest in child welfare,” she said. “And because there is no logical connection … the state is destined to lose.”

Georgia Equality applauded the ruling and Lambda for its work.

“We congratulate our colleagues at Lambda Legal on their great work and success in this case, and look forward to working toward continued success together,” Jeff Graham, Georgia Equality's executive director, says in a statement. “While this in no way indicates the judge’s opinion on same-sex marriage, it is encouraging that even one of the more conservative judges in the district is unwilling to accept the State’s tired claim, based on no evidence, that opposite sex couples are better for children.”

A spokesperson for Olens told the AJC that his office is reviewing the decision.

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