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from Political News
Georgia Judge Overturns
Marriage Protection Amendment
by Bill Duncan, Chair of the NARTH Legal Committee
[Editor's note: On May 16, 2006, Fulton County (GA) Superior Court Judge
Constance C. Russell ruled that a constitutional amendment protecting marriage
between one man and one woman was illegal because it allegedly violated the
state's single subject rule on ballot questions. The marriage amendment was
passed by a 76% to 24% margin by the people of Georgia in 2004.]
Summary of Decision, by Bill Duncan:
O'KELLEY V. PERDUE
2004CV93494
Georgia Superior Court, Fulton County
May 16, 2006
After the Georgia marriage amendment was overwhelmingly approved by voters in
November 2004, a group of citizens opposed to the amendment sued-alleging that
the amendment (1) used ballot language that misled voters and (2) contained two
subjects in violation of the state constitution.
In regards to the first claim, the court held that ballot language need only to
identify which amendment voters are voting on; the language for this amendment
accomplished that result.
On the single-subject challenge, defendants had argued that the four sentences
of the amendment were all "germane to the same subject." The court identified
the purpose of the amendment as "the acknowledgment of the union of man and
woman as the only valid form of marriage in Georgia." The court noted that an
amendment addressing multiple topics does not violate the single subject rule as
long as it has one objective and all topics are germane to the accomplishment of
that objective. The court believed that the first, third and fourth sentences
were germane to the amendment's purpose.
The first, because it defined marriage and the third and fourth because they
"serve to invalidate other forms of marriage [which] furthers the public policy
of acknowledging only one form of marriage as legitimate and valid."
The court then turned to the second sentence that provides: "No union between
persons of the same sex shall be recognized by this state as entitled to the
benefits of marriage." The court assumed from the use of the word "union" that
the legislature must have intended to address the status of "civil unions."
The objective of this sentence, to the court, was "to ensure that unions between
persons of the same-sex-without restriction-are not afforded any of the
advantages, rights or privileges afforded to married same-sex couples under
state law." Thus, the court believed this sentence would "preclude future
legislatures from creating or recognizing civil union as a valid legal status."
The court believed that individuals could support a specification of the
definition of marriage but that doing so did not require "a decision as to the
treatment of same-sex relationships within the state." Since "deciding that same
sex relationships should be given some form of legal recognition in Georgia
would have no effect on the state's recognition of the union of a man and a
woman as the only valid form of civil marriage" the benefits portion of the
amendment is a separate subject.
Since "union" as used in the amendment is not limited to a legal status,
"[a]sking voters to decide how the law should treat same sex relationships in
the context of a law that has as its intended objective the validation or
privileging of marriage between men and women creates precisely the dilemma the
single subject rule was adopted to avoid."
The case is provided in a PDF format: O'KELLEY V. PERDUE, 2004CV93494, Georgia Superior Court, Fulton County.
Updated: 3 September 2008
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