Attorneys hoping to overturn Georgia's gay marriage ban fired back on Friday, challenging the state's argument that a federal judge should throw out their lawsuit.
Lambda Legal filed a lawsuit in April challenging the state's gay marriage ban and its refusal to recognize same-sex marriages performed in other states. But Attorney General Sam Olens argued that gay marriage is not a “fundamental right” and asked U.S. District Judge William Duffey to dismiss the case.
In a 42-page brief filed on Friday, Lambda argued that even the state recognizes gay couples as equal, but by banning gay marriage condemns same-sex couples to “an inferior tier of citizenry.”
“The State effectively acknowledges that Plaintiffs and their children, although otherwise 'equal,' have been condemned by the State’s actions to membership in an inferior tier of citizenry. Stripped of rhetoric, the State’s Motion enunciates no interest for this condemnation other than moral disapproval of an individual’s choice to commit her or his life to a person of the same sex. And at the same time, the State disrespects other states’ decisions to allow couples of the same sex to marry.”
Lambda also argues that since the Supreme Court's decision striking down a portion of the Defense of Marriage Act last year, four U.S. Courts of Appeal and federal district courts in 16 states ruled that restrictions on gay marriage similar to Georgia's violate the 14th Amendment.
Lambda argues against the state's motion to dismiss the lawsuit on the grounds that it raises federal questions of whether the state's marriage ban violates the due process and equal protection clauses of the 14th Amendment. Lambda also counters that Duffey's court has jurisdiction to rule whether Georgia may refuse to recognize legal marriages performed in other states, and that the ban deprives gay couples the “constitutional rights of liberty and equality.”
“In the final analysis, the State’s position is that a majoritarian preference in 2004 to exclude same-sex Georgia couples and their children from the rights and dignity of marriage is immune from judicial review. But '[a] citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.'”