Sometimes fate conspires with you. It certainly did with Attorney General Sam Olens, who released his brief for Georgia’s marriage equality case (Innis v. Adderhold) on one of the busiest days of Georgia’s political calendar. When a political figure acknowledges his position on the losing side of history (“Plaintiffs may well be right that our nation is headed for a new national equilibrium on same-sex marriage”), he’d probably prefer to sidestep the media spotlight.
The obligatory preface —I’m not a lawyer. You gathered that, I’m sure. But the marriage equality question, in the minds of most non-lawyers, isn’t about the interpretation of documents as much as the ordering of our society. With that in mind, the Attorney General filed a well-written and relatively simple document, which adds up to a nod of the head towards the past and a shrug.
Reading the document, it is remarkable how much ground he’s willing to concede. To his credit, the Attorney General accepts that “[t]he love that Plaintiffs articulate for their partners and children is clear, as are their contributions to our society.” At no point (to my untutored eye) did he argue that homosexual relationships were unnatural or inferior to heterosexual ones. Rather, all but one of the “state’s legitimate interest” in question centered on attempts to regulate reproduction through marriage, which would preclude homosexuals who could not reproduce. Of course, two objections jump out: 1) that’s merely an argument why marriage is a good idea for heterosexuals, not why it should be denied to homosexuals and 2) homosexuals parent children even if they do not reproduce. In fact, gay parenting has become something of a specialty here in the South.
The state’s other legitimate interest was “exercising prudence before departing from the heretofore universal definition of marriage.” The whole document is visible in that sentence, which doesn’t ask to stop the bullet train of marriage equality but suggests we lightly apply the brakes.
The next ten pages center on Baker v. Nelson, a 1972 case in which the Supreme Court dismissed a claim that prohibition of same-sex marriage violated the Constitution. I don’t have the academic credentials to challenge the application of that precedent (hash it out below!), but it’s worth noting that at the time the American Psychiatric Association considered homosexuality a sociopathic personality disorder. If the Attorney General has to go back that far to make his case, he already knows the outcome.
We all do. The inexorable victories of the gay rights movement since United States v. Windsor last summer effectively end the debate on gay marriage. What we’re arguing about now is a time-table. The Attorney General seems to know this but feels an obligation to defend the state’s laws. To do otherwise would be “lawless.” At the very least, he can count on our state’s soft spot for a lost cause.