Legal experts think argument, timing on side of repeal

By John Ruch @JohnRuchAtlanta

Since 2004, gay Georgians have been prohibited from legally marrying thanks to a referendum that prevents them from saying “I do.” That ban might have met its match.

The legal challenge filed last week against Georgia’s same-sex marriage ban looks like a winner, attorneys tell CL, with discriminatory homophobic laws increasingly seen as, well, indefensible. In fact, a big strategic question is whether state and county officials will bother trying to defend themselves at all.

“I don’t know what [defense] the state of Georgia could offer that would withstand constitutional scrutiny,” says Georgia State University College of Law Professor Tanya Washington. “Momentum is on the side of the challengers.”

The lawsuit’s main strategy is jumping on an anti-bigotry bandwagon, according to Tara Borelli, one of the Lambda Legal Defense and Education Fund’s attorneys who is repping the plaintiffs. Since the U.S. Supreme Court shot down a key piece of the federal Defense of Marriage Act last year in U.S. v. Windsor, 11 more same-sex marriage court cases have been decided — “all uniformly in favor of marriage equality,” Borelli says.

Every standard defense has failed in those cases, even under “rational basis” scrutiny — the lowest level of review a court applies when considering a discriminatory law. Those decisions aren’t binding on the Georgia case, Washington said, but certainly will influence the judge.

Failed defenses include the long tradition of different-sex marriage and supposed damage to it. “Marriage continues to thrive,” Borelli notes, adding that courts have ruled: “The simple fact that the government has been discriminating against a minority group a long time is not a reason to continue discriminating.”

“I don’t see any of those [defenses] surviving,” agrees Washington, who co-wrote an influential brief in the Windsor case smacking down the notion that same-sex marriage harms children.

“We can’t wait to see” what the defense argument will be in this case, Borelli says. But it’s too early to know who will even represent the three defendants: the clerk of Gwinnett County Probate Court, a Fulton County Probate Court judge, and state Registrar Deborah Aderhold. They have two months to respond to the lawsuit, and can do so on their own or represented collectively, possibly by state Attorney General Sam Olens.

One or more of them could choose not to defend the laws at all — on moral grounds or simple unlikelihood of winning — like officials have done in several other cases, including Windsor. But Olens told the AJC prior to this lawsuit that it’s his duty to defend the same-sex marriage ban. And Washington says the state likely will defend the ban because its heavy-handed nature shows an unusual commitment level.

Another X factor is the U.S. Supreme Court, which might decide to rule on same-sex marriage once and for all before Georgia’s suit plays out. It will be months before this case sees the inside of courtroom.

“Usually, the court will respond to a live controversy. It doesn’t get any live-r,” Washington said. Of 29 states with same-sex marriage bans, she noted, only four are not facing legal challenges.

If the Supreme Court does take up the issue, it likely will choose one of those earlier cases, Borelli says.