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Is Legal Analysis Going Out of Style?

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BY ARTHUR S. LEONARD 

Just hours after the New York Court of Appeals ruled July 6 that the state Constitution does not afford marriage equality to gay people, the Georgia Supreme Court issued its own marriage decision, unanimously ruling that a state constitutional amendment approved last year by voters there did not offend the “single subject” rule.

For those who saw a rush to judgment in the New York case, where the opinion came less than 40 days after the argument, the Georgia judges appeared to be incredibly speedy sprinters, as they had heard argument only days earlier. The court overturned the May 16 ruling by Superior Court Judge Constance C. Russell, who had concluded that the Georgia amendment, approved by voters in 2004, was not validly enacted.

Republican Governor Sonny Perdue had asked the court to expedite its review, stating that if need be he would call a special legislative session next month to propose a new anti-gay marriage amendment for the fall ballot. The governor warned that he would go ahead with the special session if the court failed to rule by early August.

The court’s lightning turnaround was, of course, totally unnecessary for any but political purposes, since there is no lawsuit on file seeking the right to same-sex marriage in Georgia and thus no impending “crisis” for those opposed to marriage equality for gay people.

As unsatisfying as were the explanations of the New York judges for rejecting the marriage claims, the explanation proffered by the Georgia judges was even worse.

The amendment as enacted had two parts. The first defined marriage for the state of Georgia as only the union of a man and a woman. The second said, among other things: “No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage.”

Judge Russell found that this presented two distinct questions to Georgia voters—first, how to define marriage, and second, which relationships would be entitled to the “benefits of marriage.”

Thus, voters who opposed same-sex marriage but supported civil unions or domestic partnership would be forced to vote against their preference, since a yes vote would ban all of these legal statuses, and a no vote would leave open the possibility of same-sex marriage—of course only in the distant future, given that nobody is predicting a rush to enact gay marriage in the absence of a constitutional ban.

Writing for the state Supreme Court, Justice Robert Benham noted that the various parties to the case each had a different characterization of what the amendment was intended to do. The court decided on a characterization different from all of them, finding that the aim was “reserving marriage and its attendant benefits to unions of man and woman.” The opinion offered no reason for preferring this description to any other.

Benham then referred to various ways that past judicial decisions had described the single subject rule, and ruled that the following description from a past decision is controlling: “To constitute plurality of subject matter, an Act must embrace two or more dissimilar or discordant subjects that by no fair intendment can be considered as having any logical connection with or relation to each other. All that our Constitution requires is that the Act embrace only one general subject; and by this is meant, merely, that all matters treated by the Act should be so connected with or related to each other, either logically or in popular understanding, as to be parts of, or germane to, one subject.”

Benham concluded that this rather loose standard of “germaneness” had been met by the Georgia amendment.

“It is apparent,” he wrote, “that the prohibition against recognizing same-sex unions as entitled to the benefits of marriage is not ‘dissimilar and discordant’ to the objective of reserving the status of marriage and its attendant benefits exclusively to unions of man and woman.”

Thus, he said, the court had concluded that the public had not impermissibly been presented with two different subject in one ballot question.

It is hard to know how one could characterize this conclusion as “apparent” when a trial judge reached the opposite conclusion. When a court says that something is “apparent,” it is signaling that it is ruling for reasons it does not care to explain. In this case, given the political pressures on the court to rule before it had proper time for due consideration, the reasons for the opinion are indeed “apparent”—and they are not “germane” to appropriate constitutional analysis.

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Updated 5:17 pm, July 20, 2018
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