A Superior Court judge in Georgia has ruled that Georgia’s ban on same-sex marriage violates the state constitution. Now, it’s really a procedural issue, since the ballot question violated a provision of the state constitution that limits ballot questions to a single subject, and the measure had passed overwhelmingly, so we can be sure to see this back on the ballot again.
However, the judge’s ruling recognizes that the views of even people who supported the measure may be more nuanced than the outcome would seem to indicate:
The ruling by Fulton County Superior Court Judge Constance C. Russell had been eagerly awaited by gay-rights supporters who filed the court challenge in November 2004, soon after the constitutional ban was approved.
Russell said the state’s voters must first decide whether same-sex relationships should have any legal status before they can be asked to decide whether same-sex marriages should be banned.
“People who believe marriages between men and women should have a unique and privileged place in our society may also believe that same-sex relationships should have some place — although not marriage,” she wrote. “The single-subject rule protects the right of those people to hold both views and reflect both judgments by their vote.”
Russell said “procedural safeguards such as the single-subject rule rarely enjoy public support.”
“But ultimately it is those safeguards that preserve our liberties, because they ensure that the actions of government are constrained by the rule of law,” the judge wrote.
So a qualified “yay!” for this ruling.
*Raises fist* Niiiiiice.
This is a lower court ruling, and is almost certain to get overturned. Its not that the language is misleading, (it’s rather clear) such decisions get made before a proposal is accepted for the ballot. No: the ruling rests on a rule that a ballot proposal must not include more than a single issue for the voters. The single issue in this case would be the protection of the institution of marriage. Its clear that the voters wanted to eliminate the possibility of counterfeit language being deployed for essentially the same purpose. They weren’t defending a word, they were defending an institution. Think of other constitutional amendments and you realize how ridiculously long they would have to be in order to encompass every possibility. Generally they have far reaching effect under a single issue…such as marriage.
Is that your expert opinion, perfesser? Would you stake your reputation as an expert on Georgia elections- and ballot-initiative law on that view?
Tell, me, perfesser, is the standard for review de novo, or do they review for abuse of discretion?
Can you tell us what other ballot measures have run afoul of the single-issue requirement, perfesser?
(Or are you just parroting something you read on a blog somewhere? Because you really ought to attribute.)
Tom old buddy.
I’m not a professor. (Were did you get that idea?)
Just your average lawyer who keeps abreast of these issues. Here in Michigan the ballot measure was challenged on the same grounds. The appeal is automatic since it’s a constitutional amendment and has the effect of binding law until the State Supreme Court grant review.
You shouldn’t listen to professors anyway, they aren’t down in the pits actually practicing, their up in there ivory towers dealing in “theory”.
(little tip)
I was going to say something sensible from up here in my ivory tower, but realized that it would be meaningless.
So I’ll just add to the chorus of qualified and hopeful “Yays.”
Community colleges are more like ivory bungalows.
Was that a swipe at Hugo’s job, Fitz?
Rather classist of you.
And if you seriously think that because the question was on the ballot then, ipso facto, it was fine, you know nothing about the way these things work. And if you think that the “single issue” was the protection of the institution of marriage, well, you must not be a trial lawyer. Because if you were, you’d recognize that, as the judge said, there are many elements to the ultimate question whether banning same-sex marriage “protects the institution of marriage,” and that each element must be determined independently, just like a jury verdict.
First question is whether marriage is in need of protecting. Another, separate question is whether this is the way to do it. See how that works?
But I am a trial lawyer & those are not the questions.Was this a valid single issue amendment? Watch it get overturned on appeal. Here in Michigan the ballot measure was challenged on the same grounds. The amendment stood. When they say single issue they mean a single issue. The people are allowed to protect the institution and should not have to do it one piece at a time.
I mean imagine what this would require.
A vote on the word marriage.
A vote on the term civil unions.
A vote on the term domestic partnerships.
A series of votes on what could and couldn’t be included?
I believe every time a Judge Thwarts the will of the people like this it only helps the pro-marriage side.
It would require clarity, Fitz, and it would require the people who push these amendments to unpack and spell out their agendas. Which would mean, of course, that the idea might become a little less palatable to voters.
But you wouldn’t want that happening, so you handwave the legal issues. I’m going to guess that the judge was a hair more conversant with Georgia constitutional law as well as the facts of the case than you are.
Also, Fitz? You still have to answer for your elitist, classist swipe at Hugo.
Fitz, I was making fun of you because I was pretty sure that you had no specialized knowledge of the law of Georgia ballot initiatives, and I called you “perfesser” because it seemed pretty silly to reach out and wing an opinion on a specialized area of law in a state you don’t practice in with unqualified certainty. It’s pretty silly for a layperson, and more so for a lawyer. I remember predictions from some of my colleagues that Romer v. Evans and Goodridge v. DPH were “almost certain” to go the other way, too.
(In fact, whether law professors know anything is a more complicated question — some, like Sam Isaacharoff, Anthony Amsterdam and Barry Sheck, have reputations as practitioners, and others are pure academics. Some of the pure academics know areas of law very well, but some areas only lend themselves to practical experience. If your professors didn’t know anything, that may have more to do with where you went to school.)
Ftiz:
The first thing a lawyer (or student) should do is read the text of the matter at hand, to wit:
Now, the first part is pretty clear. Two men shall not be issued a marriage license by any Georgia jurisdiction.
But THEN…
They quit talking about marriage and start talking about unions of any type. Does this prohibit contracts? Successorships?
And THEN…
They statutorily attempt on a state basis to overthrow the Comnity Clause of the Constitution. Nullification much?
Now, Fitz, shine up your lawyerly microscope and try to tell me this is a single issue amendment. It is, at best, a poorly crafted piece of crap.
Thanks, Magis. By way of contrast, here’s the text of Michigan Prop 04-2:
See, that proposal simply says asks for an up-or-down vote on one piece of language. Hard to find a more unitary way to phrase it than that. On the other hand, the Georgia initiative is susceptible (as the Fulton County Superior Court found) to an adoption of one part but not the other.
Of course, the terse wording of the Michigan prop is subject to interpretation on what constitutes a “similar union.” The ideological greedheads in Georgia wanted to eliminate any such ambiguity, and in so doing, they created a voidable ballot measure. Serves ‘em right.