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When a big case comes up, the question on most observers’ minds is how�not when�a court will rule. But in the case over the state’s ban on gay marriage, which is set to be argued before the Supreme Court of Georgia on Tuesday, both questions will matter. Gov. Sonny Perdue created the sense of urgency the day after Fulton County Superior Court Judge Constance C. Russell struck down the amendment last month. He said that if the state Supreme Court did not reverse Russell first, he would call a special session of the Legislature in early August in time to place a revised constitutional amendment on the ballot in November. Russell’s order appears to allow a constitutional amendment banning gay marriage�as long as that amendment does not run afoul of the so-called single-subject rule, the problem that has stymied amendment supporters since it was passed by more than 75 percent of Georgia voters in 2004. That rule embodies a Georgia constitutional provision that says a constitutional amendment may address only one subject. On May 30, the Supreme Court granted Perdue’s request to hear oral argument on his appeal on an expedited basis. The court’s decision to set an early hearing date is no guarantee that it will issue a ruling on the merits by August. Similarly, while the court’s record on the single-subject rule provides clues as to the other big question�how the court will rule�they are only clues. A high-profile case from three years ago demonstrates how the court might agree to hear an expedited appeal but fail to issue a decision before the external deadline driving the expedited consideration passes. That case involved the dispute between Perdue and Attorney General Thurbert E. Baker over whether Perdue could stop Baker from appealing to the U.S. Supreme Court a lower court ruling striking down a Democratic-leaning state Senate map. The state Supreme Court agreed to hear the dispute between Baker and Perdue on an expedited basis, hearing oral argument in May 2003. But the court didn’t issue a decision before the U.S. Supreme Court ruled in the state’s redistricting appeal brought by Baker�vacating the lower court’s ruling on the map�the following month. By the time the Georgia court ruled for Baker in September 2003, it was too late to affect the underlying federal case over redistricting. The gay marriage case could go the same path, with the court declining to rule before Perdue’s deadline despite moving the oral argument up on the calendar. According to the court’s public information officer, the statutory deadline for deciding the gay marriage case is the end of the court’s January 2007 term, sometime in April 2007. Dissent would delay One thing that could delay the issuance of a decision is if a justice decides to pen a dissent, according to Antoinette Davis, who clerked for Chief Justices Harold G. Clarke and Norman S. Fletcher and former Justice Hardy Gregory Jr. and now practices with Boone & Stone. Davis said she thought the court was “going to make every effort” to issue a decision in the gay marriage case in an expedited fashion. “I think the tenor of the order [granting expedited review] suggests that they’re going to get this thing out,” she said. Christopher J. McFadden, a Decatur lawyer and a frequent advocate in Georgia appellate courts, agreed that a dissent could mean a delay in the issuance of a decision. If the court’s members are unanimous, said McFadden, “they’ll push harder to meet” an external deadline. A known case Observers left to guess how the court will decide the case are not working without information, either. Not only has the Supreme Court considered cases touching on the single-subject rule generally, but all but one of the jurists who will decide the battle over the gay marriage amendment have seen this case before. While the plaintiffs argue that the court also could uphold Russell’s order on the basis that the ballot question posed to voters was misleading in its incompleteness, Tuesday’s arguments likely will focus on why Russell ruled in the plaintiffs’ favor�that the various parts of the amendment covered too much ground. The first part of the stricken amendment, known as “Amendment One” for its position on the November 2004 ballot, says that Georgia “shall recognize as marriage only the union of man and woman.” The second part provides that a “union” between persons of the same sex will be not recognized by the state as carrying the benefits of marriage. Represented by Baker, Perdue (the nominal defendant in the gay marriage case) argues in his appellate brief that each part of Amendment One is “germane to the other and to the overall purpose of the amendment, which is to limit in Georgia the rights and benefits of marriage only to unions between men and women.” Because the amendment spoke to civil unions only to the extent that they are a “proxy” for marriage, argues the state, the provisions on civil unions were properly placed in the same amendment as the explicit ban on recognition of same-sex marriages. The state’s brief points out that challenges based on the single-subject rule have only rarely succeeded, describing seven cases in which the argument has been rejected. Plaintiffs represented by a legal team comprised of attorneys from the American Civil Liberties Union of Georgia, the Lambda Legal Defense and Education Fund and Alston & Bird argue in a brief that the state cannot now define the subject of the amendment as sufficiently broad to include all its components. Otherwise, say the plaintiffs in that brief, “no amendment or legislative act could ever violate the single-subject rule, as it always is possible for a lawyer to describe any piece of omnibus legislation with sufficient generality to satisfy the non-test that [the state] would have this Court adopt.” State Sen. David Adelman, D-Decatur, also a plaintiff in the case, has filed a separate brief through his counsel at Bondurant, Mixson & Elmore. A group of 55 Georgia law professors represented by Arnall Golden Gregory submitted a brief saying that Amendment One is unconstitutional. On the other side are the state and the Arizona-based United Families International, a group that defines its mission as “to defend marriage, family and life wherever they are challenged,” which filed an amicus brief in support of the state. Expedited in 2004 The court’s handling of the case in 2004 is instructive. That time around, a 5-2 majority affirmed Russell’s decision to decline to enjoin the inclusion of Amendment One on the November 2004 ballot. The court heard that case on an expedited basis, too, deciding the case within a month of Russell’s ruling. Fletcher, Justice P. Harris Hines and Justice Hugh P. Thompson signed on to the majority opinion authored by Justice George H. Carley in 2004. All but Fletcher, who retired, will consider the Amendment One case. Fletcher’s replacement and Perdue’s former executive counsel during the Amendment One debate, Justice Harold D. Melton, is not participating; Floyd County Superior Court Judge F. Larry Salmon will take his place. In the 2004 consideration of the case, the majority decision didn’t touch on the merits of the single-subject rule argument. Instead, the decision turned on whether the judiciary could stop the voters’ consideration of an amendment approved by the Legislature. In her dissent joined by Justice Robert Benham, Leah Ward Sears, now the court’s chief justice, never said that Amendment One violated the single-subject rule. However, she wrote at length on the rule’s virtues in concluding that the case should be remanded back to Russell to consider the merits of the plaintiffs’ single-subject rule argument. The 2004 decision found Presiding Justice Carol W. Hunstein in the middle, concurring specially with the majority while expressing frustration with the time pressures imposed by the case. She said she disagreed with the majority to the extent that it concluded the judiciary could never enjoin voters’ consideration of a constitutional amendment in what Hunstein called the “very rare” circumstance where the amendment violates the single-subject rule. She said she couldn’t join the dissenters, either, because they would have sent the case back to Russell for further consideration less than a week before voting day. “Such rushed rulings can serve only to undermine the public’s faith in the legitimacy and accuracy of the judicial process,” wrote Hunstein. She wrote that it was better to allow the voting on the amendment to go forward; then, if the amendment passed, allow the courts to consider its constitutionality another day. That day has come. Hunstein and Hines dissented from the court’s decision to hear the state’s appeal on an expedited basis. They issued no opinion explaining the reasons for their disagreement, but it’s possible at least some members of the high court still feel rushed. Perhaps they’ll make Georgians wait a little while longer to get their answer. The case is O’Kelley v. Perdue, S06A1574. Alyson M. Palmer can be reached at [email protected]

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