Deadline Approaches to Answer Same Sex Marriage Lawsuit

July 15, 2014 10:00 am

by Jon Richards · 36 comments

Back in April, Lambda Legal filed a lawsuit seeking to overturn Georgia’s constitutional amendment prohibiting same sex marriage. The state, and specifically Georgia Attorney General Sam Olens, has until July 21st to respond to the suit.

Pro-equality groups know this, and have begun pressuring Olens to refuse to defend the amendment, which would lead to a quick victory in the courts. That’s the method US Attorney General Eric Holder recommended back in February as the way to bring a speedy end to the debate over marriage equality.

So it’s no surprise that pro LGBT rights group Georgia Equality started a petition urging Olens to drop his defense of the amendment banning gay marriage. There is even an appeal to Olens’ religious faith as a reason to stand down from the suit.

That’s the wrong approach.

Sam Olens took an oath of office to uphold the United States and Georgia Constitutions. To violate that oath because of public opinion that increasingly favors marriage equality, or because the US Attorney General said it would be OK to ignore constitutional law, is the wrong answer.

For those wishing to overturn the amendment, that leaves two options. The first is a victory in court. That, of course, is the goal of the current Federal lawsuit. Longer term, it’s an issue that will likely be decided by the United States Supreme Court.

The other option lies within the legislature.

Towards the end of the 2014 session, Representative Sam Teasley and Senator Josh McKoon introduced versions of the Preservation of Religious Freedom Act. Had a final version of the bills passed, individuals who had religious reasons to claim an objection to a state law could have their day in court. The bills didn’t pass, mainly because of fears that passage of the law would provide a legal excuse for those with religious beliefs to discriminate against gay marriage.

While a court decision on something as volatile as same sex marriage brings a quick end to a divisive issue, it leaves the losing side feeling cheated. The easiest example of this is the 1973 decision on Roe v. Wade. I can’t think of anything more divisive than that during my lifetime, unless it was the draft.

Finding agreement on a law that would preserve the right of the faith based community to observe their religious beliefs while respecting the desire of those in the LGBT community not to be discriminated against should be the goal. After the Preservation of Religious Freedom Act failed earlier this year, there were pledges on both sides to work together to find that common ground.

This is a goal that both the faith-based community and the LGBT community should support.

sonofliberty July 15, 2014 at 10:26 am

……HB 1023 never came out of committee……..for good reason.

beenthere July 15, 2014 at 10:39 am

This isn’t intended as sarcasm, flame throwing or anything else. Just an honest question – I do not understand statements like this: “preserve the right of the faith based community to observe their religious beliefs”

How is civil marriage, a license issued by a goverment official, in any way a violation of anyone’s religious beliefs? I am a married heterosexual. My spouse and I could not have obtained a govt-issued marriage license and then waltzed into a Catholic church and demanded a priest perform a full mass, a temple and demand a rabbi marry us under a chuppah, or a mosque and demand an imam marry us there? Religious freedom ALREADY exists – no officiant has to marry just anyone with a marriage license who comes calling? My dad was a Baptist minister for 30+ years and wouldn’t marry anyone in his churches unless they joined and demonstrated a commitment to the body, and did premarital counseling with him. Seriously, go get a legal, Georgia marriage license for a heterosexual marriage TODAY, then walk up to a clergyperson of a faith you don’t adhere to and demand to get married. It won’t work.

Paging opponents of marriage equality….this dog don’t hunt!!

Lea Thrace July 15, 2014 at 11:57 am

All of this!

FranInAtlanta July 15, 2014 at 12:33 pm

I agreed with you at one time. However, when Vermont made same sex marriage legal, the first bill stated that anyone who would not officiate at all weddings could not officiate at any. Governor found it and refused to sign bill until it was fixed. Supposedly, it was “slipped in” but it is a goal of many – not, as far as I can determine, of the gays that just want the same rights as straights but mostly of those who want to stir up a fuss.
I do think that kinship laws forbidding marriage should also be dumped and that any two people who wish to enter a marriage contract should be allowed to enter it. I appreciate being able to determine each year whether husband and I should file joint or separate tax returns and the goodies for collecting Social Security are even more rewarding.

beenthere July 15, 2014 at 12:57 pm

In a friendly rejoinder, I’d say that being concerned about first draft language, from another state, (and that state is Vermont!) where even their Gov wouldn’t sign it because said language was so obviously ludicrous, is a very creatively-built strawman? Again, for that to happen, the GEORGIA legislature would have to pass a bill saying you have to marry any and all comers, and our Governor would have to sign it. Which again, didn’t fly in VERMONT. Rest assured, Bryant Wright is no closer to being forced to perform a Rastafarian heterosexual wedding in the sanctuary at Johnson Ferry Baptist Church than he is a Baptist homosexual one.

Robbie July 15, 2014 at 10:43 am

One of the areas of disconnect here is that those who don’t support marriage equality see this as a political issue, and those who do support marriage equality understand that this goes far beyond politics. This is a real-life issue, including adoption rights, inheritance rights, and over a thousand other rights that are denied to some couples simply because of who they are.

As I mentioned in my letter linked above, there is no legitimate rationale for claiming religious freedom as a reason to be against marriage equality, at least according to my own faith. I understand (and agree) that the Attorney General has a responsibility to defend the law in court – but using religious freedom as a reason to continue state-sanctioned discrimination is not legitimate.

saltycracker July 15, 2014 at 11:57 am

What do we gain by expending resources and emotions in a public battle over defining marriage and redefine it again and again as more seek legal aka $$beneficial inclusion in a privileged classification? That classification and laws came from a time when women were viewed entirely different than today.
Leave the definition of marriage in the freedom of religion domain. Let our government grandfather in what we have and concern themselves with individuals. ….adults (18) and children (by blood or contract – adoption or guardian). The relationships of adult individuals can be established by contract, powers of, deeds, agreements, legislation, intent or whatever legal means available.

beenthere July 15, 2014 at 1:00 pm

“Leave the definition of marriage in the freedom of religion domain”
That’s exactly the problem, salty, marriage is defined by the government? Which is why discriminiating against homosexual marriage is wrong. I personally wish we just had civil marriage like in Europe, where 2 consenting adults of age walk into their local government’s office and get a piece of paper. Any religious or other celebration is entirely ceremonial and unrelated to the tax benefits, legal rights, yada yada yada that are conferred upon the couple by the government.

Harry July 15, 2014 at 1:41 pm

Like in Europe? Only problem is it doesn’t work that way in most European countries for homosexuals wanting to be “married”. 10 allow it, 25 don’t.

beenthere July 15, 2014 at 1:50 pm

Actually, 11 of them support marriage equality. Here are the states that constitutionally prohibit it: Belarus, Bulgaria, Croatia, Hungary, Latvia, Lithuania, Moldova, Montenegro, Poland, Serbia, Slovakia and Ukraine.

Nice company. WWMD? Who cares what Moldova would do.

MattMD July 15, 2014 at 5:14 pm

Harry is not very smart.

Harry July 15, 2014 at 7:03 pm

“…like in Europe, where 2 consenting adults of age walk into their local government’s office and get a piece of paper. “
Homosexual marriage is not allowed in 25 European countries; is allowed only in 11 degenerate West European nations. So it’s hardly “like in Europe”. I rest my case.

saltycracker July 15, 2014 at 3:18 pm

The problem is govt should not define marriage. What about 3 or more consenting adults with at least one a public employee with benefits ?

beenthere July 15, 2014 at 4:19 pm

1) When it is under serious consideration by goverment to just cease issuing marriage licenses to ANYONE, and retroactively voiding marriage licenses already issued, and revoking any and all legal rights and tax privileges afforded to married couples – then and only then will discussions about “the problem is the govt should not define marriage” have any place in this debate. The government does and always will define marriage, as far as the legal and taxation ramifications go, and we all know that isn’t going to change.
2) When government issues marriage licenses to 3 consenting heterosexual adults, then and only then would issuing marriage licenses to 3 consenting homosexual adults even be an issue. Obvious strawman is obvious.

saltycracker July 15, 2014 at 4:43 pm

Retro void ? My post said grandfather.
The govt lumping individuals into the marriage classification for tax and public benefits is at the core of why more folks want to redefine the category.

Times have changed and the issue will continue to be devisive and the public costs incalculable. The solution is for the government to be for individuals and stop trying to define a matter for society or religion.
No politician is for this as they are compelled to pick a traditional or other group, how about the individual side ? That’s constitutional.

Wake up time

tribeca July 15, 2014 at 11:04 am

Really well written Jon.

It makes sense for Olens on a political level to defend the suit. After all, there are GOP primaries in his future.

However, I would be really impressed with him as a person of conscience if he were to come out and say that he’s not going to put up a fight. Yes, he has an official duty to defend the Georgia and US Constitutions, but if the same sex marriage ban is unconstitutional, which it may very well be, he has no duty to defend it.

John Vestal July 15, 2014 at 11:34 am

I generally agree with Jon’s comments above, including that the AG has a general duty to defend the codified laws of the State and the Constitutions of both the State and the U.S.

The professional standards of the ABA, however, allow for “degrees of discretion” when such defense may be considered to be “frivolous” or otherwise unlikely to be ultimately successful…

But R. Michael Cassidy, who teaches prosecutorial ethics at Boston College Law School, counters that a prosecutor facing the enforcement of a controversial law may actually have a duty to refuse the case. First off, Cassidy says, states generally have a definition of a prosecutor’s role and responsibilities. In Illinois, for example, the state’s attorney has a duty to defend the state constitution.

“You can’t really say the responsibility to defend statutes outweighs the responsibility to defend the constitution,” Cassidy says. “If they truly believe the statute violates the constitution, their responsibility to uphold the constitution trumps the duty to defend the statute.”

In addition, Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct, which Illinois has adopted, says that a lawyer shall not bring or defend a proceeding or assert or controvert an issue unless there’s a basis in law and fact.

“Essentially we don’t want lawyers asserting frivolous claims. It’s be-neath the dignity of the profession and wastes resources,” Cassidy says. “If a state’s attorney decides there is no reasonable likelihood of success, then they have an ethical responsibility not to defend the statute because such a defense would be frivolous.”

The argument put forth above could be extended from the declining to defend a statute that is viewed to be (likely) unconstitutional to declining to defend an amendment to the State Constitution that is likely to be found in violation of the U.S. Constitution.

From ABAJournal.com, “District attorneys are declining to defend controversial state and federal laws”, March 2013

smvaughn July 15, 2014 at 2:09 pm

I generally believe Olens should defend the law (although I believe it should ultimately be struck down), but this depiction of the counterargument is a straw man:

“Sam Olens took an oath of office to uphold the United States and Georgia Constitutions. To violate that oath because of public opinion that increasingly favors marriage equality, or because the US Attorney General said it would be OK to ignore constitutional law, is the wrong answer.”

The argument is not that Olens should ignore constitutional law. The argument is that the 14th Amendment to the US Constitution — which Olens presumably swore to uphold — does not allow states from banning SSM.

c_murrayiii July 15, 2014 at 5:00 pm

If conservatives were serious about stopping Gay marriage, they’d remove all state recognition for any marriage. There’s no equal protection argument if there is no institution to start with. Let churches, synagogues, mosques, temples, or whatever decide what is and is not a marriage. Government has no business in two (or more) people’s romantic relationship. And as far as “the children,” more and more kids grow up in single parent households everyday now anyway. Adoption through legal process, as well as support hearings in the courts can solve most custody and support concerns.

MattMD July 15, 2014 at 5:24 pm

Social paleo-conservatives have no business in the relationship of two people. I trust the government way more than the religious sector.

c_murrayiii July 15, 2014 at 6:14 pm

Ok, but my argument is trust neither. Why seek outside validation from anyone for your personal relationship? Is it that fragile you need someone to tell you its ok?

griftdrift July 15, 2014 at 6:37 pm

It’s not about “outside validation” it’s about how property is divided if that relationship ends.

Harry July 15, 2014 at 6:51 pm

It’s also about spousal benefits during the life of the contract. How about this: All statutory benefits should follow the kids, not the parents.

griftdrift July 15, 2014 at 7:01 pm

I fear to ask but what statutory benefits?

Mrs. Adam Kornstein July 15, 2014 at 7:18 pm

Who’s kids? The ones I had before? The ones he had before? The ones we have together?

What if we have no children?

Please stop Harry, you’re making my head hurt.

Harry July 15, 2014 at 9:54 pm

Who has custody should get the benefits. No kids, no benefits….you’re on your own.

griftdrift July 15, 2014 at 9:55 pm

What benefits?

Harry July 15, 2014 at 10:11 pm

Tax benefits, for one. Marriage should not convey tax benefits. Kids should get tax benefits, not couples.
Qualified plan benefits, for another. No employer should be mandated to provide qualified plan benefits to spouses, or gain deductions for spousal benefits. Kids yes, spouses no.

griftdrift July 15, 2014 at 10:41 pm

So you’re talking about during the marriage? Okaaaay.

Harry July 15, 2014 at 11:02 pm

The law should treat married people same as as single. As saltycracker and others have mentioned, this would remove government from the marriage business. There would be no need for government-issued marriage licenses. This would not eliminate pre- and post-cohabitation contracts between private parties, but there would be no governmental involvement in marriage. Thus no religious objections or civil rights objections could be injected. A true libertarian solution to the problem and real separation of church and state.

WeymanCWannamakerJr July 16, 2014 at 4:39 am

This only works if you have universal healthcare solutions Harry. Otherwise June Cleaver is SOL.

Harry July 16, 2014 at 7:37 am

Ward Cleaver can still pay for June’s health insurance, just there’s no tax benefit. The reason why healthcare and higher education have become so expensive is due to government mandates and mandated benefits.

griftdrift July 16, 2014 at 8:50 am

I knew I shouldn’t have asked

saltycracker July 15, 2014 at 8:34 pm

Under the individual suggestion: The church has no place in settlements – they bless the unions the church sanctions. The civil filing is a courthouse record and can be agreed contracts and/or the state can set some minimum standards for the involved individuals.

beenthere July 16, 2014 at 9:37 am

If that as you describe salty is applied equally to hetero and homosexual couples, I think that’s the ideal solution.

Mrs. Adam Kornstein July 15, 2014 at 7:16 pm

Two things, society has be “redefining marriage” since the caveman first organized themselves into tribes & clans.

The marriage contract, is a property contract regardless of the wedding taking place in a church or at a satanic altar. This country has zero mechanism to accept just a civil arrangement. In fact during the right wing zeal of the 90’s “common law” property arrangements were abolished in GA, quite literally forcing same gender couples into the activist cause we now find ourself in.

There is no argument against two people entering into a legal marriage with out a religious argument. So, if you have a non religious argument I’m happy to hear it.

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