Georgia Leaders and Voters File Lawsuit Saying Marriage Amendment is Deceptive and Unconstitutional

Affiliate: ACLU of Georgia
September 16, 2004 12:00 am

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ATLANTA–A lawsuit filed today in the Superior Court of Fulton County asks that an amendment dealing with marriage rights for same-sex couples be taken off of Georgia’s November ballot. The lawsuit, which was filed on behalf of a diverse range of Georgia voters and leaders by Lambda Legal, the American Civil Liberties Union of Georgia and the law firm of Alston & Bird LLP, charges that the ballot language is affirmatively deceptive and unconstitutional.

Earlier this year, the state legislature approved an amendment to the Georgia Constitution that would prohibit same-sex couples from marrying, may prohibit civil unions, and seeks to limit the court’s jurisdiction on matters involving same-sex couples. The legislature’s approval put the measure on the November ballot, but lawyers for the plaintiffs argue that the required process for amending the Georgia Constitution was not followed.

“The purpose and focus of this litigation is to insure that whenever we seek to alter the constitutional rights of the people of this state — regardless of the underlying subject matter — the process followed is, in fact, constitutional,” said Johnny Stephenson, a partner at Alston & Bird. “Unfortunately, the process employed for adoption of this proposed amendment is fatally defective.”

“This amendment is constitutionally flawed, period. Not only does it combine four different subjects, in violation of the Georgia Constitution, the clearly deceptive language voters will see on the ballot creates the misperception that its only purpose is to define marriage,” said Jack Senterfitt, Senior Staff Attorney in Lambda Legal’s Southern Regional office in Atlanta. “Furthermore, separate and apart from the lawsuit, Lambda Legal believes that a group’s civil rights shouldn’t be put to a popular vote.”

The lawsuit argues that the proposed amendment is unconstitutional based on the “single-subject rule.” The Georgia Constitution requires that ballot initiatives pose a single subject at a time to voters, rather than covering multiple issues.

As it stands, the proposed amendment covers multiple issues, including:

  • definition of marriage;
  • prohibition of the recognition of other types of unions between same-sex couples;
  • an attempt to limit the jurisdiction of Georgia courts;
  • an attempt to limit the full faith and credit given to judgments and other proceedings from other states.

“The only thing the ballot question asks voters to do is define marriage, but voters’ answers to that question will be used to decide a much wider range of protections for gay couples and to rework the system of government in our state,” said Beth Littrell, an attorney with the ACLU of Georgia. “If the legislature only meant to deal with the definition of marriage, they would not have included more than 100 additional words that go far beyond excluding same-sex couples from marriage. The way this amendment is presented and what it may actually do are very different things.”

“We are encouraged to see that the deceptive language of the amendment is facing a legal challenge,” said Karla Drenner, Campaign Director of Georgians Against Discrimination, a statewide coalition working to defeat the anti-gay amendment. “The ballot measure is puzzling: why don’t proponents want people to know what they are voting on? Some voters believe gay couples should be allowed to marry while others prefer to limit recognition to civil unions or domestic partnerships. Don’t they have the right to know exactly what they are voting on?”

Drenner added, “As this lawsuit progresses, Georgians Against Discrimination will continue to let voters know of the deception of the amendment wording so they are aware of the real impact on their friends, neighbors and co-workers.”

Plaintiffs in the case include: The Missionary Baptist Church as represented by Rev. Zach Lyde in Brunswick, Georgia; Chuck O’Kelley, a law professor at the University of Georgia, and his wife Judi, who is working to educate voters about the proposed amendment; Reverend Timothy McDonald III, Senior Pastor of the First Iconium Baptist Church in Atlanta; and Rep. Tyronne Brooks and Senator David Adelman, members of the Georgia State Legislature.

Statements of plaintiffs

Senator David Adelman: “The law protects the rights of the many people in my district and voters across Georgia who have told me they want to protect current laws on same-sex marriage, but not outlaw civil unions or interfere with domestic partner benefits. The people of Georgia deserve to know what they are being asked to vote on when they mark their ballot. The referendum is misleading because the ballot language relates only to marriage, but if passed, it may smuggle into the Georgia Constitution a prohibition on civil unions.”

Rabbi Scott Saulson: “The recent controversy over the gay marriage amendment has spawned a new school of biblical interpretation. This is how it goes: The government of, by, and for the people has no duty to clothe the naked, feed the hungry, or heal the infirm because this would constitute a radical usurpation of individual responsibility. However, such government does have a duty to deny the rights of some individuals who, through mutual agreement and the exercise of individual responsibility, seek to cherish, support, protect, and bequeath to one another. Moreover, this new interpretation claims to represent not only an immutable Divine truth, but a truth given primarily to ‘compassionate’ conservatives to champion. This is not the voice of faith-based morality. This is abusive politics.”

Judi O’Kelley: “As I have worked over the past months to educate voters about this proposed amendment to our state constitution, I have found that many Georgians believe that it is only about whether gay marriage should be permanently prohibited. That is what the ballot language says. But the printed language is deceptive. The actual amendment isn’t just about marriage; it may also determine whether gay Georgians will be allowed to enter into civil unions and domestic partnerships. It may affect whether they and their families will be allowed many of the legal entitlements and benefits that my husband, our children and I have by virtue of the fact that he and I are a married heterosexual couple. Many voters are surprised to learn that the amendment impacts these other issues. Some voters we talk with are uncomfortable with gay marriage, but still believe that it just isn’t right to try to deny benefits to people just because they are gay. My fellow volunteers and I have been gratified that voters tell us they have second thoughts once they read the real language of the amendment. I believe the court will agree that this misleading ballot language is illegal and unfair to all the people of Georgia.”

Representative Tyronne Brooks: “I will begin my 13th term in the Georgia General Assembly in January and also serve as the President of the Georgia Association of Black Elected Officials. In all of my years in public service I have worked against legislating discrimination. This proposed constitutional amendment would forever enshrine discrimination in a document meant to preserve the civil rights of all Georgians. It is my duty as a citizen and as a legislator to educate the voters about the truth of this amendment — it is deceptive, discriminatory and unconstitutional.”

Reverend Tim McDonald: “We cannot have people of faith supporting discrimination in any form. I don’t believe we should have an amendment to the Georgia Constitution discriminating against any segment of our society and I call upon all people to look at the real issue of discrimination and not become entangled in the hot button political issues surrounding this amendment.”

Chuck O’Kelley: “I have joined this challenge to Proposed Amendment No. 1 because, as a Georgia lawyer, I have a special obligation to protect and defend the Georgia Constitution and our citizens’ fundamental liberties. One of these basic liberties is the right to vote for or against each and every proposed amendment to the Georgia Constitution. Proposed Constitutional Amendment No. 1 is in reality several amendments. As written, it forces we Georgians to either vote ‘NO’ on all of these amendments, or ‘YES’ on all of them. We are denied the right to split our votes on the issues. For example, some voters with whom I have spoken want to vote in favor of the proposed definition of marriage but against the proposed restriction on the recognition of other forms of civil union. The amendment will not allow citizens to do this. This clearly violates the Georgia Constitution and universally recognized principals of democratic governance.”

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