The Georgia supreme court on Tuesday refused to block next week's vote on a proposed constitutional amendment to ban same-sex marriage. Reaffirming an 84-year-old decision, the court said judges lack authority to intervene in contests over proposed legislation or constitutional amendments until the legislation has been passed or the amendments approved by the voters. A superior court judge cited the same ruling last month in refusing to block the vote. Her decision was appealed to the state supreme court.
Georgia is one of 11 states with gay marriage ban amendments on the November 2 ballot. Opponents had hoped to keep the votes from being counted. In the Georgia case, they argued the amendment was flawed because the measure contains more than one subject. They also claimed that the amendment summary that voters will see on the ballot is misleading. In a 5-2 decision, however, the majority wrote that the only issue before the court was "whether the judiciary is authorized to interfere in the constitutional amendment process" before the issue goes to voters. Like their predecessors on the court in 1920, they concluded no such power is given to the judiciary. The amendment "certainly can be challenged in the event it is enacted by virtue of approval by the voters," the majority held, but at this point in the process "the judiciary does not have any jurisdiction to block further consideration of the proposed amendment."
Justices Leah Ward Sears and Robert Benham were the dissenters. Sears argued that the state should not count the votes because the proposed amendment violates the single-subject rule and presents voters with a difficult choice. Some may support a ban on gay marriage but would not wish to embrace
other portions of the amendment, she said. In addition to banning same-sex marriage--the only portion spelled out on the ballot--the amendment also specifies that the state need not recognize same-sex
marriages performed by other states and declares that Georgia courts will have no jurisdiction to settle property division disputes arising from same-sex unions.
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