The net effect of the Supreme Court’s decision is that same-sex couples can legally marry in 30 states and the District of Columbia. The court’s reticence to rule on the constitutionality of marriage bans does not change the reality for same-sex couples in Georgia, who are prohibited by statute and constitutional amendment from marrying.
It also leaves tens of thousands of children in limbo, subject to laws that compromise the legal status of their parent-child relationships, which in all other contexts are considered to serve their best interests.
Imagine a service woman relocates to Fort Benning with her same-sex partner and child. The couples’ marriage, and the child’s relationship with her non-biological parent, are automatically void in this state. When the child’s biological mother is deployed overseas, the child has no legal parent authorized to enroll her in school or make medical decisions on her behalf.
This scenario highlights the harmful impact of Georgia’s same-sex marriage ban on children in same-sex families. The state’s discriminatory marriage laws do not serve children’s best interests, despite attempts to characterize them as child protective measures. In truth, Georgia’s exclusionary marriage laws deprive children of a legal parent-child relationship with both parents and denies them the right to litigate parentage, visitation and custody in our state court.
In the wake of the Supreme Court’s decision in United States v. Windsor, more than 40 state and federal courts have ruled state marriage bans unconstitutional. Some courts invalidated state bans as violating equal-protection guarantees; others ruled the bans infringed upon same-sex couples’ and families’ substantive due process rights. These decisions are not binding on the court deciding the constitutionality of Georgia’s marriage laws; however, they have fueled support for the recognition of same-sex marriage in the courts of law and public opinion, and they express relevant analysis and arguments that the court cannot ignore.
Chief among the claims made by states defending laws against marriage equality is the justification of the bans as child welfare measures. Courts in other jurisdictions have carefully considered 35 years of empirical data examining gay parents and outcomes for children in same-sex families. This relatively closed universe of data reveals that children in families headed by a same-sex couple experience positive outcomes, and reflects overwhelming support for the finding that allowing same-sex couples to marry benefits children in same-sex families.
Georgia offers no new arguments in defense of its marriage laws and proffers no new data to support its assertion that its ban serves children’s interests. Attorney General Sam Olens has advanced arguments that have been routinely rejected by other courts.
Why deploy the resources of the Georgia attorney general’s office and taxpayers’ money to fight legal battles the state is positioned to lose? The question is not whether Georgia’s attorney general can defend the state’s marriage laws; the question is whether he should. A cost-benefit analysis suggests the candle is not worth the wax, particularly when victory victimizes children.
Tanya M. Washington is an associate professor at the Georgia State University College of Law. She teaches family law, civil procedure and race law.
