AG Olens Marriage Equality Brief: Don’t Think Twice, It’s All Right

July 22, 2014 11:00 am

by Chet Martin · 32 comments

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.

{ 32 comments… read them below or add one }

Harry July 22, 2014 at 11:47 am

“The losing side of history”? I don’t think so, on several levels.

eliwatkins July 22, 2014 at 1:43 pm

Bans on same sex marriage are already on the losing side of history in a few states, and it is looking more and more like this issue isn’t going to be settled nationwide within the next few years. Public opinion and the preponderance of legal opinions in the past few years have been in favor of marriage equality. So could you please elaborate, since I’m genuinely curious where you’re coming from on this.

tribeca July 22, 2014 at 2:48 pm

This is the South, we tend to hang on to lost causes ’round these parts.

Harry July 22, 2014 at 4:38 pm

1. A only a minority of people in the US support homosexual marriage, including members of traditional Democratic constituency groups.
2. In global context public opinion is trending even more strongly against homosexual marriage. It’s currently permitted in countries that contain less than 5% of the world population, and that percentage is and will be decreasing.
3. According to the Holy Bible, homosexuality is against God’s law. Therefore, the practice of homosexuality has no future if you believe the Bible.

tribeca July 22, 2014 at 5:20 pm

Well if we’re gonna go by God’s law, lets shut down all the ‘cue joints in the state… because we all know eating pork goes against God’s law… Leviticus 11:7 in case you forgot where to look.

Hey, where’d all the slaves go? Slavery is a-ok under God’s law. We should bring that back right after we outlaw divorce and start enacting some harsh punishments for fornication and adultery.

Harry July 22, 2014 at 6:24 pm

You know the difference between the Old Testament and the New Testament?

Salmo July 22, 2014 at 6:33 pm

I bet Sam Olens does (nyuk nyuk!)

(I say that agreeing that using Leviticus to discredit Romans is disingenuous)

c_murrayiii July 23, 2014 at 6:01 am

I believe in the New Testament divorce is a no-no and slavery is still ok. So…which parts of the New Testament are still valid and which are to be discarded like the Old Testament. BTW, I thought the Bible as a whole, New and Old, were still valid if you were a “true believer.”

Dave Bearse July 24, 2014 at 12:08 am

That may be, but Jesus spoke long and often about the sin of homosexuality.

Bridget Cantrell July 25, 2014 at 5:30 pm

Uh, chapter and verse, please?? He absolutely did not.

That was Paul…and only three times. You know – the same guy that said marrying in general was bad and had to give disclaimers on which verses were his opinion and which were God’s word.

tribeca July 25, 2014 at 6:08 pm

Pretty sure Moses “wrote” Leviticus… he was no slouch.

benevolus July 23, 2014 at 7:09 am

So if you “believe in the Bible” don’t marry a guy.

Bridget Cantrell July 25, 2014 at 5:28 pm

1 Tim 4:1-5, Harry.

It says that hypocritical liars forbid people to marry.

dsean July 22, 2014 at 1:07 pm

The reason why the brief is simple and only offers a few very basic rationales is that Georgia is arguing for a “rational basis” standard of review. That’s where the government wins if they can articulate any reason, even a bad one, for drawing a distinction between different groups of people.

The challengers are arguing for “heightened scrutiny” review (which level is somewhat up in the air). Under those standards, the government has to show that it has a really really good reason for drawing a distinction between groups of people and that the distinction that they’ve drawn is very narrow. Think of the distinction between forcing men and women to register for Selective Service – historically there’s been a really compelling reason why only men had to register, namely that only men could serve on the front lines. (as an aside, after I wrote that, it may no longer hold up to review).

Anyway, Georgia will win or lose this case solely on which level of scrutiny applies to gay marriage. Lately, Courts have been saying some form of heightened scrutiny applies, and basically, no state can meet its burden under that test. Some Courts have held that no, only rational basis applies, but that’s very much against the trend of the Courts. Ultimately, the Supreme Court may have to step in and clarify the standard of review.

tribeca July 22, 2014 at 3:02 pm

Bingo. This whole debate stems from SCOTUS’ failure to articulate a standard of review in Lawrence v. Texas and the RBR/intermediate scrutiny debate is going to be the crux of SCOTUS’ ultimate decision on this thing.

I’m thinking that Windsor and the line of cases that have come after show a strong push that intermediate scrutiny is going to be the standard by which we evaluate orientation-based discrimination. Olens’ arguing for RBR here is what he has to do. This is the brief of an AG who knows he’s going to lose and but has GOP primaries ahead. Best not to stir up the hornets’ nest if you’re gonna wind up losing anyway.

xdog July 23, 2014 at 7:43 am

I’m just a poor non-lawyer but the court decided Windsor was unfairly penalized since laws required her partner’s estate to pay more taxes than it would if she had been straight. I don’t see how Olens finesses that.

dsean July 23, 2014 at 3:42 pm

Not exactly. The issue in Windsor was whether the Federal Government could treat two classes of state-sanctioned marriage differently since NY recognized the same-sex marriage of Windsor and Spyer. The Court held that it violated the Constitution for the feds not to recognize that marriage as well. In so doing, though, the Court made a total hash of the constitutional analysis, failing to say if the primary basis was federalism, equal protection, or due process. Instead, the Court cited all three in somewhat contradictory ways. That was Kennedy’s attempt to keep the opinion narrow, but it left a lot of ambiguity as to how lower courts should treat state marriage bans.

xdog July 23, 2014 at 4:36 pm

Thanks.

joejohns July 22, 2014 at 3:02 pm

First, some of us have not been called to be on “the right side of history”. Some of us, rather, have simply been called to be faithful to God and His Word — which establishes that marriage is a union between 1 man and 1 woman. And we are faithful to Him regardless of whether it is “winning” or “losing”.

And second, since the beginning of recorded human history, marriage has been between man and woman. Man and woman, by their different temperaments, physical designs, and bodily functions, have been recognized as uniquely complementary of each other; hence why man and woman are unioned together — they each bring something the other doesn’t have. That’s established history. But now to be on the so-called “right side of history” we are to dismiss all of history for the unnatural desires of a few? No thanks.

tribeca July 22, 2014 at 3:03 pm

Since the beginning of recorded human history we’ve had bigamy as well… should we work to get the anti-bigamy laws taken off the books? Because hey the Bible was cool with it.

I respect you and your right to follow whatever religious beliefs appeal to you. But how will two loving men getting married impact your or your wife’s ability to love God? How will it have any impact on the quality or sanctity of your marriage?

saltycracker July 22, 2014 at 7:18 pm

Imagine polygamy is next, why not ? Follow the money, it is about benefits, tax breaks and public entitlements granted to the redefined “marriage” classification.
Defining marriage does not need to be a government function in 2014.

greencracker July 22, 2014 at 4:26 pm

Olens writes in part: the law “furthers the state of Georgia’s legitimate interests in encouraging the raising of children in homes consisting of a married mother and father, ensuring legal frameworks for protection of children of relationships where unintentional reproduction is possible, ensuring adequate reproduction, fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children …”

Lolz, Georgia has a legitimate interest in “adequate reproduction?” Well my gay neighbor has two kids she’s given birth to; and she and her wife are nothing if not “child-centric.” Yea, some might say their kids are spoiled, ahem.

And my marriage merely consists of a man and a woman, not a “mother and father.” Pretty weak, huh?

Seems like my marriage loses a point and her illegal-in-Georgia marriage gains a point … if “adequate reproduction” is a thing Georgia’s pushing.

FranInAtlanta July 22, 2014 at 6:13 pm

Offering the financial benefits of marriage to any two people (even kin) willing to enter into the contract and go through divorce court to end it is only fair. What goes on behind closed doors is none of my business.

SingingLawyer July 23, 2014 at 11:07 am

The Attorney General’s job is to enforce the law as written and he takes a vow to defend the GA Constitution. The marriage definition is in the GA Constitution, so he is obligated to defend it. You can debate the merits of the gay marriage ban, but the moment a state AG stops defending state law we no longer have the rule of law.

John Vestal July 23, 2014 at 11:22 am

Do ABA rules of conduct allow leeway regarding this issue?

From ABA Journal, March 2013

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.”

Couldn’t the argument put forth above be extended from 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?

SingingLawyer July 23, 2014 at 3:55 pm

No. The rule says an attorney shouldn’t raise a defense that is frivolous. The AG’s defense in this case is not at all frivolous based on existing law. SCOTUS has not yet found a fundamental right to SSM and, as noted above by other commenters, has yet to even clarify what the standard of scrutiny should be for SSM laws. As an attorney you can’t just guess that a court is going to reverse course on an issue in the future.

George Chidi July 23, 2014 at 4:23 pm

So, Olens defends the law. His defense will fail, as I can only assume he knows it will. There has been no successful defense of same-sex marriage bans since Utah. None of the grounds he’s offering are especially novel.

While I would prefer he simply sidestep it, the idea of seeing the ban fail in court instead has appeal. It’s unambigous — there’s no “if he had only defended it” question lingering. It renders a plain comeuppance. I only wish it could be over faster.

I think all state-sanctioning of the religious act of marriage is a violation of the 1st Amendment ban on respecting religious establishment in the law. And I think conservatives would do well to adopt this view, since it allows some sense of ideological consistency with the evolving legal environment.

Harry July 23, 2014 at 4:30 pm

I hope your assumptions prove wrong.

Dave Bearse July 24, 2014 at 12:11 am

Logic and consistency have nothing to do with it.

If they did, no one would be advocating for an abortion exemption for incest.

Jon Lester July 26, 2014 at 12:10 pm

I’d like to see more people across the spectrum questioning why the state should be in the business of regulating human relationships in the first place.

Harry July 26, 2014 at 12:34 pm
The Last Democrat in Georgia July 26, 2014 at 8:24 pm