The 2004 constitutional amendment that banned gay marriage in Georgia was always just crowd-pleasing theater. State legislators could have produced the same legal effect by passing a simple law, but no. By putting it on the statewide ballot, they hoped conservatives would be drawn to the voting booth to vent their distaste for gay Georgians and that while there, they would also vote Republican.
It was cynical, but it worked. Voters flocked to the polls and approved the amendment by a 3-1 margin, and Republican candidates did very well. Gay marriage was a wedge issue that worked strongly in the GOP’s favor at the time, and they were not shy about using it, not just in Georgia but around the nation.
Today, things are a little different, and that 2004 amendment is beginning to look a bit like the 1956 decision to slap the Confederate battle emblem onto the state flag. That too was a crowd pleaser once upon a time, but if the goal was to fend off desegregation, it didn’t work. Change came anyway.
The same fate may await Georgia’s constitutional ban on gay marriages.
For the moment, Georgia’s law remains intact. The U.S. Supreme Court’s 5-4 decision on gay marriage does not alter it in any way. That ruling merely requires the federal government to honor same-sex marriage in those states that have approved it. It is silent on the constitutionality of state bans because that was not the issue before it.
However, the reasoning behind Justice Anthony Kennedy’s majority decision suggests that silence may not last long. The federal government, Kennedy wrote, cannot refuse to honor gay marriages while recognizing straight marriage because the Constitution guarantees us all the right to be treated equally under the law and not be demeaned by our own government.
“The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage” Kennedy wrote. “This requires the Court to hold, as it now does, that (the Defense of Marriage Act) is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”
If the Fifth Amendment does not allow the federal government to discriminate against and demean gay couples, it stands to reason that it also bars Georgia and other states from doing so. It’s no slam dunk that Kennedy would rule that way in some future case — his decision also stresses the right of states to decide marriage issues for themselves. But the justices who found themselves in the minority in the case think they see the writing on the wall.
Justice Antonin Scalia, for example, treated the future overturning of state bans as inevitable, and he was none too happy. In his almost operatic dissent, he fumed that “by formally declaring anyone opposed to same-sex marriage an enemy of human decency, the (Kennedy opinion) arms well every challenger to a state law restricting marriage to its traditional definition.”
Scalia’s anger at being cast as a bigot is funny, because in the past he hasn’t shied from that reputation. In one well-known dissent, he wrote that government had the right to criminalize gay behavior because “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.”
Some Americans still feel that way. The question is whether they can use government as an agent to enforce that attitude. Increasingly, in Georgia and elsewhere, the answer is no.