Georgia Attorney General Olens says gay marriage ban is constitutional

As expected, Georgia Attorney General Sam Olens has announced that his office will defend the state’s 2004 same-sex marriage ban. The announcement was made via a brief Olens’ office filed minutes ago in response to Lambda Legal’s federal class action suit challenging the ban. The brief is defendant Debbie Aderhold’s motion to dismiss and a full copy of the brief is available below. Aderhold is the state registrar.

“The challenged laws define marriage as the union of man and woman,” the brief states. “This definition furthers the State of Georgia’s legitimate interests in encouraging the raising of children in homes consisting of a married mother and father; ensuring legal frameworks for protection of children of relationships where unintentional reproduction is possible; ensuring adequate reproduction; fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children; and exercising prudence before departing from the heretofore universal definition of marriage.”

Olens’ response on behalf of Aderhold also acknowledges the tide toward the acceptance of same-sex marriage is turning, but calls the support “the stale conformity of compulsion.”

“Plaintiffs may well be right that our nation is headed for a new national equilibrium on same-sex marriage. Indeed, in the last several years, at least eleven states have decided to expand their definition of marriage to include same-sex couples through the democratic process.

“And it seems as though each month new opinion polls are released showing increased public support for such changes in additional states. But judicially imposing such a result now would merely wrest a potentially unifying popular victory from the hands of supporters and replace it instead with the stale conformity of compulsion. This Court should reject Plaintiffs’ invitation to disregard controlling precedent, decline to anticipate a future ruling by the U.S. Supreme Court, and dismiss Plaintiffs’ claims in their entirety.”

Olens’ response also includes this:

“Plaintiffs ask this Court to declare that the people of Georgia no longer have the right to decide for themselves whether to define marriage in the way every state in our union defined it as recently as 2003.

“In arguing that this decision is now beyond the bounds of democratic process, Plaintiffs claim that sexual orientation is a suspect class – a claim that the Eleventh Circuit has squarely rejected – and ask this Court to recognize for the first time a new fundamental right to same-sex marriage. Both of these arguments fail under controlling Eleventh Circuit precedent. Accordingly, rational basis scrutiny applies, and the State easily clears that low hurdle. Plaintiffs also claim that the State’s definition of marriage as between opposite-sex couples discriminates on the basis of sex, but even the vast majority of courts that have found a new right to same-sex marriage have rejected this argument because the law applies equally to men and women. Moreover, the U.S. Supreme Court has already rejected all of these claims in a decision that remains binding on this Court and the Eleventh Circuit unless and until the Supreme Court declares otherwise.

“At their core, Plaintiffs’ claims are about where the law is headed, not about where it is now.”

Aderhold was named as a defendant in the suit because in her role as state registrar and director of vital records, she would be the party causing a harm to plaintiff Jennifer Sisson, whose marriage to her late partner Pamela Drenner was not recognized on Drenner’s death certificate.

Olens’ office had until the end of the day today to issue a full response to the lawsuit. A response was initially due June 21 but Judge William Duffey granted a 30-day extension to July 21.

Other notable passages from the response:

• “The love that Plaintiffs articulate for their partners and children is clear, as are their contributions to our society. The State values Plaintiffs as its citizens, and readily acknowledges its responsibility to ensure that they, too, enjoy due process and equal protection under law. The State also respects the important, intimate, and personal choices that Plaintiffs have freely made. But the U.S. Constitution does not convert every ‘important, intimate, and personal decision’ into a fundamental right immune from the democratic process.”

• “Plaintiffs seek to invalidate the definition of marriage that, until 2003, was universal in this Nation.”

• “Plaintiffs claim that the Georgia laws barring same-sex marriage violate the due process guarantees of the Fourteenth Amendment of the United States Constitution. Plaintiffs’ claim fails because it incorrectly assumes that the fundamental right to marriage includes the right to marry someone of the same sex. As there is no fundamental right implicated by Georgia’s marriage laws, they are scrutinized under rational basis review, and easily pass.”

• “While the right to traditional marriage has been found to be of fundamental importance, this fundamental right does not encompass the right to marry a person of the same sex. An effort to frame the fundamental right to marry in that manner is an effort to redefine marriage as it has been known throughout history.”

Olens, a Republican elected to his post in 2010, made it clear early on that he was planning on defending the ban, saying in February in a response to U.S. Attorney General Eric Holder’s public statement that state attorneys general are not required to defend same-sex marriage bans if they believe they are unconstitutional that it is “lawless” not to. When the lawsuit was announced, Olens’ spokesperson released a statement saying, “The Attorney General will fulfill his constitutional obligation to defend Georgia law.”

A young boy hands petitions to a representative from Olens' office. (photo by Patrick Saunders)
A young boy hands petitions to a representative from Olens’ office. (photo by Patrick Saunders)

Several same-sex couples and their families, led by staff members from Georgia Equality, delivered 3,080 signed petitions to a representative from Olens’ office Monday morning urging him to refuse to defend the ban. The group was not allowed past a security checkpoint in the lobby.

Many federal judges have ruled state bans on same-sex marriage are unconstitutional in the year following the Supreme Court’s ruling striking down a major portion of the Defense of Marriage Act.

Utah officials defending the ban have said they will appeal their case directly to the Supreme Court. U.S. Attorney General Holder told ABC News that if the Supreme Court agrees to hear any marriage equality cases, the Justice Department will file a brief that “will be in support of same-sex marriage.”

Attorneys general in Kentucky, Nevada, Virginia, California and Pennsylvania said they would not defend bans on same-sex marriage in their states.

We will update this story as news develops.

UPDATE 3:09 p.m. EST: Instant analysis from constitutional scholars

Constitutional scholar and HRC Atlanta co-chair Anthony Kreis has reviewed the brief and calls it “a very weak case” and cited several problem areas for Olens, particularly how narrowly he construes that marriage is a fundamental right.

“So for him the question isn’t whether same-sex couples’ exclusion from marriage is unconstitutional,” Kreis says. “He’s suggesting same-sex marriage is a new right in itself. That’s a very strange, but not uncommon way for an attorney general to defend these laws.”

Hillel Levin, an associate law professor at the University of Georgia and an expert on same-sex marriage rulings, says the brief is a case of deja vu.

“Unsurprisingly, these are the exact same arguments that have been rejected time after time by other courts around the country over the past year,” Levin says. “However the court rules on this motion, the case will be appealed. The issue of same-sex marriage will ultimately be settled by the Supreme Court, likely within the next couple of years.”

Kreis also found it interesting the way Olens addressed the Lofton case, a 2004 decision in the U.S. Court of Appeals for the Eleventh Circuit that banned gay adoption in Florida. That ruling was based on now widely discredited evidence that straight couples make better parents than gay ones. The Eleventh Circuit includes Georgia, Florida and Alabama. A Florida district court of appeals later overturned the adoption ban, but the Lofton case and all testimony and findings regarding how fit gay people are to be parents remains on the books in the higher court.

“[Olens] doesn’t really answer the pushback that is sure to come which is, can we consider this good law? Numerous courts have rejected the Lofton analysis,” Kreis says.

Olens references the famous Windsor case, which led the U.S. Supreme Court to strike down a major portion of the Defense of Marriage Act last June. But Kreis says the way he references it is “fairly strange.”

“He claims that Windsor didn’t use heightened scrutiny. In other words, the court basically should give a pass to the legislative judgement and state’s judgement that same-sex marriage is poor public policy,” Kreis explains. “The 9th Circuit has been pretty clear as saying Windsor deserves heightened scrutiny and other courts have done the same.”

At issue also is the State Board of Regents’ decision last month to offer married same-sex couples tax benefits equal to heterosexual couples through a retirement plan. The state would have received a stiff penalty from the federal government if they did not comply with this.

“What they’ve done is recognize same-sex marriage when it’s convenient for the state. If the state has such a rational interest in prohibiting same-sex marriage, then if I were Sam Olens I would flesh that out very thoroughly,” Kreis says. “These flaws and his inability to buttress his claims further shows how weak the state’s case is. The key now will be to see how these issues and weaknesses are fleshed out in hearings and briefs in the next few weeks.”

UPDATE 3:51 p.m.: Lambda Legal says these are ‘the same arguments that have been rejected time and time again’

Lambda Legal senior attorney Tara Borelli weighed in on the Olens brief, saying, “This brief raises the same arguments that have been rejected time and time again in several federal courts unanimously since Windsor was decided.”

Borelli cited Olens’ argument in the brief about Baker v. Nelson, in which the Minnesota Supreme Court ruled that a state law limiting marriage to opposite sex couples did not violate the U.S. Constitution.

“This is an argument that isn’t even a question to be answered by the court,” Borelli says. “This is a one-sentence decision issued by the Supreme Court 42 years ago. Obviously a lot has changed since then.”

Also at issue here is Olens’ arguments that the fundamental right to marriage does not include the right to marry someone of the same-sex.

“But of course every court since Windsor that has considered the issue has had no trouble seeing that the plaintiffs aren’t seeking some new right, just some time-honored right to marry that protects everybody else,” Borelli says.

The other two defendants, Clerk of Gwinnett County Probate Court Brook Davidson and Fulton County Probate Court Judge Pinkie Toomer, are represented by their own counsel and their responses are due by midnight tonight. Borelli says they may or may not move to dismiss like Olens did on Aderhold’s behalf, or they may just file an answer to the complaint.

After those responses are filed, the plaintiffs will file an opposition brief then that attorney general has the right to file a reply brief. It is not clear yet whether there will be oral arguments on today’s motion.

UPDATE 6:46 p.m.: Further analysis claims brief has ‘no facts, no data, and no supporting arguments’

Per Eric Segall, law professor at Georgia State University and a constitutional law expert:

“The state’s brief in support of its motion to dismiss the case is full of the same old, discredited arguments that same-sex marriage will somehow further the state’s interests in the welfare of children. The brief says this with no facts, no data, and no supporting arguments. A Kentucky judge faced with the same arguments said they were ‘not arguments of serious people,’ and the Pennsylvania Attorney General found them ‘illogical’ and ‘insulting to same-sex couples.’ The Attorney General should change his mind, allow Georgia to do the right and moral thing, and not defend this lawsuit as numerous other attorney generals have done in the last few months.”


Here is a full copy of the brief below: | @patricksaunders