The U.S. Constitution prohibits states from denying any “person” the “equal protection of the laws.” Georgia’s Same-Sex Marriage Amendment literally violates that constitutional command by denying gay and lesbian “persons” the “equal protection” of Georgia’s marriage laws. Thus, several groups of plaintiffs, including committed couples with children, have sued the state, requesting nothing more than they be granted what the Constitution specifically requires — the equal protection of the laws.
In Kentucky, Nevada, Pennsylvania, Oregon and Virginia, state attorneys general recently refused to defend state bans on same-sex marriage. These were certainly difficult political decisions, but at the end of the day, each concluded the laws were indefensible both morally and legally.
Saying “equal justice under the law is different,” Kentucky’s attorney general observed, “once I reached the conclusion that the law was discriminatory, I could no longer defend it.” In Oregon, the attorney general concluded that state’s ban on same-sex marriage “cannot withstand a federal constitutional challenge under any standard of review.”
In Nevada, the attorney general said the state’s “arguments grounded upon equal protection and due process are no longer sustainable.” The Pennsylvania attorney general said, “I cannot ethically defend the constitutionality of Pennsylvania’s (same-sex marriage ban). I know that in this state there are people who don’t believe in what we are doing, and I’m not asking them to believe in it. I’m asking them to believe in the Constitution.”
State bans on same-sex marriage have been invalidated by judges in red and blue states, and by trial and appellate judges. This non-partisan consensus has been made inevitable by the Supreme Court’s decision in United States vs. Windsor, which strongly suggested, even according to Justice Scalia’s dissent, that state bans were also unconstitutional, and by the strong national consensus that gays and lesbians — who desire the same monogamous, loving and legal relationships accorded to heterosexual couples — should be granted that status.
All of which brings us to Georgia’s Attorney General Sam Olens. Although he filed his answer in federal court on Monday, he still has plenty of time to decide not to defend the case. He has two stark choices. He can defend Georgia’s ban on same-sex marriage and be on the wrong side of history, or he can make the right legal and moral choice and assert that as an officer of the state sworn to uphold the federal Constitution, he cannot defend a Georgia practice that is flatly inconsistent with the Equal Protection Clause of the Fourteenth Amendment.
Georgia’s motion to dismiss is full of absurd arguments — that denying same-sex couples the right to marry will somehow benefit children by promoting procreation within marriage and by fostering “a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children.” These arguments linking same-sex marriage to the welfare of children have been dismissed by one judge as “not serious,” and by the Virginia attorney general as “disrespectful” to same-sex couples and “illogical” because giving people who love each other the sanctity of marriage has no effect on heterosexual couples or their children.
The Georgia attorney general’s arguments have been discredited again and again by other judges. It is simply too late in the controversy for the him to say with a straight face that bans on same-sex marriage promote any governmental interest other than classifying gays and lesbians as second-class citizens, a position that is morally and legally indefensible.
The attorney general has a duty not to violate the U.S. Constitution, and he has an obligation to make that determination for himself. Attorney General Olens has argued that until a court of binding authority strikes down a substantially similar law, he must defend the laws of this state. Although that should be a strong working presumption, it is, as the decisions of numerous other attorneys general show, not a conclusive one by any means. When a law is clearly and facially unconstitutional, and when any and all defenses of similar laws have been rejected by numerous other courts, the attorney general has a discretion, perhaps even a duty, not to defend.
Attorney General Olens should do the state of Georgia a great public service by not defending a lawsuit that cannot be morally or legally justified, and will not in the end be won. Mr. Attorney General, please defend the Constitution, defend what it right and just, and don’t defend this lawsuit.
Eric J. Segall teaches at the Georgia State University College of Law.
