By Gary Cox
Leaders in Atlanta’s LBGT community understand that it is, “just a matter of finding the right couple, just the right circumstances, just the right case” to challenge Georgia’s constitutional exclusion of same-sex marriage. Just like Georgia, a statewide vote was held to amend the Utah state constitution in 2004 to prohibit same-sex couples from getting legally married. U.S. District Court Judge Robert Shelby, (10th District Circuit Court), struck down the ban in December 2013 stating, “The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason.” Also, Judge Shelby refused to stay his order during the appeals process, as did the appellate court. (The state of Utah appealed to the U.S. Supreme Court to halt same-sex marriage in Utah. A stay was granted.) Nevertheless, these actions have paved the way for Utah same-sex couples to immediately marry and over 200 couples have done so before the U.S. Supreme Court interceded – the status of those marriages will most likely depend upon the outcome of the case – which will eventually go to the U.S. Supreme Court.
In a rather ironic twist, Judge Shelby quoted Supreme Court Justice Anthony Scalia who warned that the Supreme Court’s reasoning and rationale that struck down the Defense of Marriage Act — which denied federal benefits to same-sex couples — could be used to strike down state laws banning same-sex marriage. Judge Shelby quoted Scalia’s negative prophecy in his pro-gay marriage opinion and used Scalia’s rationale to strike down the Utah marriage ban. The Federal DOMA ruling, Justice Scalia feared, would be a “Trojan Horse” by which to challenge state laws banning same-sex marriage. This was the case in Utah and it may very well be the case in a future Georgia challenge – we just don’t yet know what Georgia same-sex couple will be hiding in the belly of Justice Scalia’s Trojan horse.
Georgia’s same-sex marriage ban mirrors the Utah ban in that they were both voter-approved amendments to the state constitution. The Utah ban, as we now know, was vulnerable to an “Equal Protection” (Fourteenth Amendment) challenge. Both the Utah case and a potential Georgia case ask or will ask a basic question: “How skeptical should courts be under equal protection principles about laws that discriminate against gays and lesbians?” The Fourteenth Amendment, Section 1 stipulates: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The last fourteen words of Section 1 of the Fourteenth Amendment were the key to striking down the Utah same-sex marriage ban. These fourteen words will be the key to challenging to Georgia’s constitutional same-sex marriage ban as well. It is a matter of “… finding the right couple, just the right circumstances, and just the right case.” We will most likely have legalized same-sex marriages in Georgia . . . it is just a matter of time before that Trojan horse is left on the Federal Courthouse steps in Atlanta – and it may come sooner than most people believe possible.