Sam Olens: Gay Georgians don’t deserve marriage

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Georgia Attorney General Sam Olens continues to defend the state's gay marriage ban, arguing in a new legal filing that the fundamental right to marry shouldn't be extended to gay couples.

“Despite Plaintiffs’ rhetoric and appeal to the inevitability of history, this is at bottom a simple case,” Olens writes in his 16-page brief. “If the Equal Protection Clause or Due Process Clause confer on same-sex couples an unqualified right to marry, the challenged state statute and constitutional provision are unconstitutional. And conversely, the challenged provisions must be upheld if the Clauses do not confer such a right. They do not, and this Court should dismiss Plaintiffs’ challenge.”

Olens and LGBT lawyers have swapped briefs back and forth since Lambda Legal filed a federal lawsuit challenging Georgia's gay marriage ban in April. Olens just can't help himself. In June, he argued that gay marriage is not a “fundamental right” and asked U.S. District Judge William Duffey to throw out the lawsuit. Lambda responded in September and Olens fired back on Wednesday.

“The right to marry is, of course, a fundamental right. But that right has never previously been understood as extending to same-sex couples,” Olens wrote.

Other highlights from Olens' request to dismiss the legal challenge:

Nevermind what's happening in courts across the country. In Georgia, gay marriage – right now –is bad.

But like their Complaint, Plaintiffs’ Opposition is based on speculation about where the law may be going, or where it has gone in other circuits, not what it is today in this Circuit. And the law today – in this Circuit – precludes their claims.

That Supreme Court decision last year that struck down the federal marriage ban? Piss off, legally speaking.

In their supplemental filing, Plaintiffs also make much of the Supreme Court’s recent denial of certiorari in cases in which three circuits held that the Constitution does afford same-sex couples the right to marry. But the denial of certiorari is not relevant here at all: “For at least eight decades the Supreme Court has instructed us, time and again, over and over, that the denial of certiorari does not in any way or to any extent reflect or imply any view on the merits.”

Let's not rush this same-sex marriage thing.

Plaintiffs assert that courts did not wait on the democratic process before protecting women and racial minorities. Plaintiffs forget the 13th, 14th, 15th, 19th, and 24th amendments. These amendments were products of the democratic process directly designed to address those injustices, and the court decisions to which Plaintiffs presumably allude enforced these amendments. But Plaintiffs here ask this Court to do something quite different: presume the 14th Amendment codifies Plaintiffs’ vision of the law (and assumptions about what the U.S. Supreme Court is likely to do in the future) and therefore wield that Amendment as a sword to cut off vigorous debate on one of the most hotly contested subjects in our democratic system.

Olens mocks the LGBT plaintiffs.

Plaintiffs and the State agree on a fundamental principle: the vital importance of marriage and the role it plays in our society. Plaintiffs believe that importance bolsters their claim of access to marriage. The State, on the other hand, believes that the importance of marriage and the critical role it plays in our society demands caution before expanding its scope beyond the definition that, until quite recently, “was an accepted truth for almost everyone who ever lived, in any society in which marriage existed.”

And mocks them some more, arguing that gay Georgians can legally marry – to opposite sex partners.

As explained in the State’s opening brief, the challenged laws do not discriminate on the basis of sex; they apply equally to men and women.


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