A federal judge in Atlanta on Thursday declined to dismiss a challenge to Georgia’s ban on same-sex marriage, allowing the case to proceed toward trial.
In a 49-page ruling, U.S. District Judge Bill Duffey rejected a motion filed by the state Attorney General’s Office to throw out a lawsuit filed last year by three gay couples and a widow.
The plaintiffs include two Atlanta police officers, a Brunswick couple and a Snellville couple who own a pet day care center. Also joining the suit were two Atlanta men who want to marry and a Decatur woman whose partner died of ovarian cancer.
“We are delighted that the court will allow this case to continue,” Tara Borelli, senior attorney in Lambda Legal’s Southern regional office in Atlanta, said. “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.”
After a flurry of court rulings nationwide, Georgia is one of a shrinking number of states that continue to ban same-sex marriage. Whether through court action, referendum or legislative action, the number of states allowing gays to marry is growing, Borelli said.
“Surely, Georgia state officials must see the writing on the wall,” she said. “Georgians believe in the Southern values of love, honor and family, but as long as the state of Georgia continues to bar same-sex couples from marriage, it devalues these families and reinforces unfairness and discrimination.”
Lauren Kane, spokeswoman for Attorney General Sam Olens, who is defending the state’s marriage ban, said the issue is working its way through the courts.
“We look forward to further clarification regarding the ability of states to decide these questions,” Kane said. “The United States Supreme Court has an opportunity to review this issue and will likely announce its intent in the coming weeks.”
Other cases pending before the 11th Circuit will also provide clarity, she said.
“As the issue remains pending, the office will continue to pursue its constitutional obligation to defend the laws as passed by the legislature and the citizens of the state of Georgia,” Kane siad.
Anthony Kreis, an expert on gay-marriage laws who teaches at the University of Georgia, noted that Duffey’s ruling comes at an early stage of the litigation. “However, it was an important win for the plaintiffs, not to be understated,” he said.
In their motion asking Duffey to dismiss the challenge to the same-sex marriage ban, state attorneys argued that the plaintiffs’ claims “are about where the law is headed, not about where it is now.” The state said advocates for gay marriage should use the democratic process, not judicial fiat, to change the law.
Duffey arrived at his decision using an extremely low legal threshold to test the constitutionality of a law — whether there was merely a rational basis for it to stand.
The Attorney General’s Office argued that the prohibition on same-sex marriages is rationally related to the state’s interests in encouraging procreation and child welfare. The state said that it has a legitimate interest in “encouraging the raising of children in homes consisting of a married mother and father.”
Duffey, a former U.S. attorney appointed to the bench by President George W. Bush, found lacking the state’s argument that banning gay marriage was essential to protecting an interest in advancing child welfare and procreation.
“These conclusory assertions are not supported by specific facts,” Duffey wrote.
Duffey also noted that the plaintiffs’ allegations, which he must accept as being true at this stage of the litigation, are completely at odds with the state’s position.
The plaintiffs, Duffey said, contend that banning same-sex marriage “harms the state’s interest in child welfare and that the exclusion does not offer a conceivable benefit to children of opposite-sex couples.” The plaintiffs also contend “that scientific consensus shows that children raised by same-sex couples are as well-adjusted as those raised by opposite-sex couples.”
Duffey noted the plaintiffs contend that excluding same-sex couples from marriage humiliates their children and denies those children the ability to understand the integrity and closeness of their own families without offering any conceivable benefit to the children of opposite-sex couples.
Not only that, the plaintiffs say that “every major professional organization dedicated to children’s welfare” agrees that children raised by same-sex couples are indistinguishable from children raised by opposite-sex couples, Duffey noted.
For such reasons, the judge said, he will not dismiss the lawsuit.
Still, Duffey “was not favorable with all the plaintiffs’ claims, including their claims on the fundamental right to marry and sex-based discrimination,” Kreis said.
“My takeaway from the tone and tenor of Judge Duffey’s ruling is that he may be reluctant to strike down Georgia’s marriage ban, but perhaps even more reluctant to put his name on a decision upholding the ban,” Kreis said.
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