Same-sex marriage may one day be the law across America, but that time has not come in Georgia, the state’s attorney general argued Monday in court papers.
In its response to a federal lawsuit filed by three gay couples and a widow in April, the state is asking a federal judge to dismiss the suit and let Georgia’s constitutional ban on same-sex marriage stand. The Attorney General’s Office argues that the plaintiffs’ claims “are about where the law is headed, not about where it is now.”
Nevertheless, the state is swimming against the current — more than two dozen lower courts during the past year all overturned state bans on gay marriage.
The Georgia Attorney General’s Office acknowledged that public opinion nationwide is shifting toward acceptance of same-sex marriage, and it noted that 11 states in recent years have decided to allow it through the democratic process.
“Plaintiffs may well be right that our nation is headed for a new national equilibrium on same-sex marriage,” the office said. But it argued that advocates should use the democratic process, not judicial fiat, to change the law.
Lambda Legal’s Beth Littrell, one of the plaintiffs’ lawyers, said Monday that Georgia is making predictable arguments that have already been made and rejected by all the courts that struck down same-sex marriage bans.
“Their argument boils down to the fact that because Georgia has always discriminated against a group of its citizens, it is free to continue to do so,” she said.
The challenge will be heard by U.S. District Judge Bill Duffey, a former U.S. attorney who was appointed to the federal bench by President George W. Bush in 2003.
The plaintiffs include two Atlanta police officers and a Snellville couple who own a pet daycare center. Also joining the suit were two Atlanta men who want to marry and a Decatur woman whose partner died March 1 of ovarian cancer.
In their filing, state attorneys struck a respectful tone when addressing these plaintiffs’ claims.
“The love that plaintiffs articulate for their partners and children is clear, as are their contributions to society,” the motion said. “The state values plaintiffs as its citizens and readily acknowledges its responsibility to ensure that they, too, enjoy due process and equal protection under the law. The state also respects the important, intimate and personal choices that plaintiffs have freely made.”
But these same plaintiffs, the motion adds, are asking the courts “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.”
In their motion, state attorneys cite two court precedents that, they assert, require the court to dismiss the suit.
They note that the U.S. Supreme Court in 1972 dismissed a due process and equal protection challenge to a Minnesota law that limited marriage to persons of the opposite sex. This ruling is directly on point and binding on lower court judges, such as Duffey, the state said. Even so, similar defenses have been raised unsuccessfully in other same-sex marriage challenges.
The state also cites a 2004 ruling by the 11th U.S. Circuit Court of Appeals in Atlanta, which sets precedent for federal cases in Georgia, Alabama and Florida. That decision upheld a Florida law that banned the adoption of children by gays and lesbians.
The ruling also held that when the government treats people differently based on sexual orientation in matters related to procreation and children, it does not trigger the same kind of legal protections that would apply if the government were treating people differently on the basis of race. For this reason, state attorneys assert, Duffey need only find a rational basis — an extremely low legal threshold — for Georgia’s same-sex marriage ban.
Among the rationales supporting the law is Georgia’s interest in encouraging the raising of children in homes consisting of a married mother and father, the state said.
State attorneys said the ban also furthers Georgia’s interest to: “ensure legal frameworks for protection of children of relationships where unintentional reproduction is possible;” ensure adequate reproduction; foster a “child-centric marriage culture” that encourages parents to subordinate their own interests to the needs of their children; and exercise “prudence” before departing from a definition of marriage that, until quite recently, was an accepted truth for almost everyone who ever lived and in any society in which marriage existed.
It’s possible that the U.S. Supreme Court will receive an appeal on the constitutionality of same-sex marriage in the fall. On June 25, the federal appeals court in Denver upheld a judge’s decision to strike down Utah’s ban on same-sex marriage.
State officials in Utah have said they will ask the high court to hear this case. On Friday, the Supreme Court stayed the lower court’s ruling overturning the ban until all appeals are disposed of.
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