The battle over a Georgia ballot measure to amend the state constitution to ban same-sex marriage went before the state supreme court Tuesday, two weeks ahead of the scheduled election, in which polls suggest the measure will easily pass. Opponents, hoping to prevent the votes from being counted, again argued that the amendment is flawed because it contains more than one subject and because the ballot language fails to convey that information to voters.
State attorneys argued that the topics covered by the amendment are related and do not violate a rule that stipulates that constitutional amendments may apply to only one topic. After hearing arguments for 40 minutes, the court took the case under consideration without indicating when it would rule.
Georgia is one of 11 states with gay marriage bans on the November 2 ballot. The amendment is being challenged by the American Civil Liberties Union and Lambda Legal. An assortment of law school professors filed a brief supporting the challenge.
Last month a superior court judge in Atlanta held that she had no power to block the vote count because of an 84-year-old state supreme court ruling. In that case the court held that judges cannot intervene in contests over legislation or constitutional amendments until the legislation has been passed or the amendment approved by the voters.
Johnny Stephenson, an attorney for the plaintiffs, told the appeals court the trial judge erred in her ruling. The 1920 ruling she cited doesn't apply to the gay marriage ban, he argued, because the constitutional rights of voters will be undermined at the ballot box, rather than by whether the amendment passes or fails. Voters, he said, have "a constitutional right not to be presented with a Hobson's choice in the ballot box."
He argued that some voters may wish to define marriage as the union of a man and woman, as the first part of the amendment specifies, but may not wish to deny same-sex partners access to the courts in legal cases such as property settlements. They are improperly denied that right by the ballot, he said. He said that's an illegal combination of two different subjects and that it isn't explained to the voters on the ballot. The ballot language "only mentions the first and most politically popular of the propositions," he argued.
Steffan Ritter, the state's attorney, argued that the two sections of the amendment are part of a unified whole and therefore constitute a single subject. "This is plainly an amendment to one part of the constitution," he said. "It's a single amendment." He argued that the trial judge was correct in ruling that the 1920 decision controls the case. Opponents are free to challenge the amendment on constitutional grounds after the vote has been tallied, he said.
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