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After 30 minutes of debating whether the court had jurisdiction over a proposed constitutional amendment that would ban gay marriage, justices at the Georgia Supreme Court coaxed a lawyer for the state government to get to the heart of the matter. What did the section of the proposal saying “no union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage” mean, asked Presiding Justice Leah Ward Sears? Senior Assistant Attorney General Stefan E. Ritter said simply that “unions” would not be recognized as marriage. Sears pushed a little further to ask if civil unions were the same as marriage. The lawyer told the justice that he thought the two were comparable. “You’re slicing it fairly thin if you’re asserting they’re different,” he said. It was an important connection because Ritter was arguing that the proposed amendment to the Georgia Constitution banning gay marriage would not violate the state’s single-subject rule, which holds that a constitutional amendment can address only one topic. The plaintiffs in the case, represented by the American Civil Liberties Union, the Lambda Legal Defense and Education Fund and Alston & Bird, have said the proposed amendment slated for the Nov. 2 election would violate the single-subject rule because it combines several different subjects (including the definition of marriage, the question of civil unions, benefits for same-sex partners and the jurisdiction of the courts) into one ballot question and therefore presents voters with an illegal “Hobson’s choice.” The parties were brought to the high court on Tuesday morning to determine whether a 1920 Georgia Supreme Court decision divested courts of jurisdiction on a proposed amendment prior to an election. Secretary of State Cathy Cox, in her role as the state’s top election official, is the defendant in the suit and was represented by the attorney general’s office. But the justices seemed concerned about the full implications of the proposed amendment and asked Ritter several pointed questions about what it may or may not do. Justice Robert Benham noted the language about court jurisdiction and wondered whether it may prevent courts from ruling on contracts between two people who are not legally married. Ritter said he did not think the amendment would have that type of effect and he doubted whether the justices ever would uphold such a position. The senior assistant AG noted that several types of relationships exist in Georgia and contracts that arise out of those relationships would not be affected by the proposed amendment. The amendment focuses solely on contracts arising out of same-sex marriages and civil unions and not other types of relationships, Ritter said. Sears also asked Ritter if the recent case of Georgia Court of Appeals candidate Howard N. Mead II had any relevance. Mead successfully challenged the results of the July primary election after he learned that one county had placed him on the ballot as “Thomas” Mead. In his case, the Supreme Court threw out the results of the election. Ritter said the Mead case was different because his rights were being violated when his actual name did not appear on ballots. In the amendment suit, however, the plaintiffs wish to remove something that was lawfully placed on the ballot. “The Mead case is not applicable here,” he said. JUDICIAL INTERFERENCE The justices granted a motion for expedited review after Fulton Superior Court Judge Constance C. Russell on Sept. 29 dismissed the complaint on the ground that the 1920 decision in Gaskins v. Dorsey, 150 Ga. 638, deprived the court from granting any relief until after the election. O’Kelley v. Cox, No. 2004CV91122 (Fult. Super. filed Sept. 16, 2004). Before an election, the proposed amendment is akin to a bill that has not yet passed the Legislature, she wrote. Russell compared the idea of a court stepping into the election process to the Legislature interfering with a jury verdict. But the attorney who argued before the high court on behalf of the plaintiffs, John E. Stephenson Jr. of Alston & Bird, told the justices that his case was distinguished from Gaskins because the injury he sought to prevent would not occur after the election but, instead, “in the ballot box” during voting. The General Assembly completed the legislative process when it passed S.R. 595 and allowed a defective referendum to be presented on the ballot, he said. The lawyer went on to say that voters who oppose gay marriage but support civil unions will be presented with a dilemma at the polls because both issues are combined in one ballot question. He also said it was “disingenuous” for the AG’s office to argue that there is no difference between marriage and civil unions because the state Court of Appeals has distinguished between the two in the case of Burns v. Burns, 253 Ga. App. 600 (2002). In that unanimous decision, the three-judge panel affirmed the ruling of a trial judge who said that a civil union was not the same as a marriage in a case in which a divorced heterosexual couple signed a consent decree stating that “no child visitation would occur during any time when either party was being visited, cohabited with or had overnight stays with any adult to whom that party was not legally married or related within the second degree.” The wife, who after her divorce traveled to Vermont and obtained a civil-union license with her female companion, appealed the trial court’s decision finding her in violation of the consent decree. FRIENDS AND FOES After Tuesday’s arguments at the Supreme Court, the author of the bill, Sen. Mike Crotts, R-Conyers, said the challenge to the proposed amendment was typical of those who support gay marriage. “This is the ploy the other side has used in every state,” he said. “They’re trying to get the court to do what they can’t do in the Legislature.” On the other side, state Rep. Karla L. Drenner, D-Avondale Estates, said she thought the legislation authorizing the proposed amendment was worded vaguely on purpose so that voters would unknowingly prohibit civil unions. Drenner is chairwoman of Georgians Against Discrimination, a coalition organized to oppose the amendment. She said she was pleased by the questions asked by the justices. “I was absolutely pleased to hear the court is concerned,” she said. An amicus brief asking the high court to reverse Russell’s decision was filed late Monday on behalf of 45 professors from the law schools of Emory University, Mercer University, Georgia State University and the University of Georgia. “As professors of law at Georgia schools of law, we are all deeply concerned with the integrity of the Georgia state constitution, the integrity of the democratic political process by which the constitution is amended and the ability of Georgia voters to cast an honest ballot free of the obligation to make an unconscionable choice between several different subjects about which they may have strongly held but opposing points of view,” the brief states. Georgia is one of 11 states likely to place such a constitutional amendment before voters this November. In Louisiana, voters passed a similar ban on gay marriage during a Sept. 18 election, but two weeks ago a judge tossed out the results, saying the amendment violated that state’s single-subject rule. The Louisiana Supreme Court is scheduled to hear the case Dec. 1. Staff reporter Jonathan Ringel contributed to this article.

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