Georgia AG Sam Olens says marriage never meant ‘as extending to same-sex couples’

Georgia Attorney General Sam Olens shows no sign of backing down from defending the state’s same-sex marriage ban despite the overwhelming rulings by federal judges across the country stating the bans are unconstitutional.

In a motion filed Wednesday in federal court, Olens states marriage has always been understood to be between a man and woman.

“The right to marry is, of course, a fundamental right. But that right has never previously been understood as extending to same-sex couples,” he writes in his reply to support his motion to dismiss.

Lambda Legal filed a federal lawsuit in April challenging the state’s same-sex marriage ban and to date only court motions have been filed back and forth; no hearings have been set.

Beth Littrell, staff attorney with Lambda Legal, said the motion was “disappointing but not surprising.”

“I think there’s nothing new or groundbreaking in the brief the state filed today. These are the same arguments that have been raised and rejected in just about every case since the striking down of DOMA,” she said. “The state is digging its heels in and is doing everything  it can to continue to discriminate.”

The next step is to wait for Judge William S. Duffey Jr. to rule on the motion to dismiss, Littrell explained.

“We may or may not file some motions. But until the judge decides on this motion to dismiss to determine if we can go forward, everything is put on hold,” Littrell said. “So we are hopeful a quick decision can be made to allow the plaintiffs to have their day in court.”

Olens’ motions begins with this provocative paragraph: “Chief Justice John Marshall famously described the role of the federal judiciary as declaring ‘what the law is.’ But like their complaint, Plaintiffs’ opposition is based on speculation about where the law may be going, or where it has gone in other circuits, not what is today in this Circuit. And the law today—in this Circuit—precludes their claims. This Court should decline the invitation to disregard binding precedent, apply the law as it is, and dismiss the complaint.”

Olens also dismisses in today’s motion the argument that last year’s Supreme Court’s Windsor ruling plays a role in striking down Georgia’s ban.

“What the Court actually did in Windsor was conclude that marriage regulation is a decision for the states to make, and that the federal government did not have a legitimate purpose to second-guess those state decisions,” he states.

Littrell said Olens’ argument that the Supreme Court’s ruling on DOMA left the decision of same-sex marriage up to the states is wrong.

“We disagree with that and so have 27 other judges and now we have 32 states and soon 35 states where same-sex couples can legally marry,” she said.

Olens also writes, “Plaintiffs and the State agree on a fundamental principle: the vital importance of marriage and the role it plays in our society. Plaintiffs believe that importance bolsters their claim of access to marriage. The State, on the other hand, believes the importance of marriage and the critical role it plays in our society demands caution before expanding its scope beyond the definition that, until quite recently, ‘was an accepted truth for almost everyone who ever lived, and any society which marriage existed.’”

Olens attacks Lambda Legal’s claims that the Supreme Court’s recent decision to not take up a marriage equality case this term and therefore clearing the way for same-sex marriage to be legalized in 11 more states has any bearing on Georgia’s case.

“In their supplemental filing, Plaintiffs also make much of the Supreme Court’s recent denial of certiorari in cases in which three circuits held that the Constitution does afford same-sex couples the right to marry. But the denial of certiorari is not relevant here at all: ‘For at least eight decades the Supreme Court has instructed us, time and again, over and over, that the denial of certiorari does not in any way or to any extent reflect or imply any views on the merits.’”

Same-sex marriage is simply not a constitutional right, Olens argues.

“Despite Plaintiff’s rhetoric and appeal to the inevitability of history, this is at bottom a simple case. If the Equal Protection Clause or Due Process Clause confer on same-sex couples an unqualified right to marry, the challenged state statute and constitutional provision are unconstitutional. And conversely, the challenged provisions must be upheld if the Clauses do not confer such a right. They do not, and this court should dismiss the Plaintiff’s challenge.”

Georgia Equality plans a rally tomorrow at Atlanta City Hall across the street from Olens’ office to urge him to stop defending the ban.

Check back for more updates as we get them.