After Lambda Legal filed suit on behalf of three couples and a widow on April 22 to challenge Georgia’s 2004 same-sex marriage ban, a torrent of attention on the case and the players involved rightfully followed. But that tidal wave has subsided as the defendants and their legal advisors review the complaint and both sides position themselves to get ready for the others’ next move.
There are now 73 active marriage equality cases winding their way through 33 different states and territories across the country. Each case has its own distinct characteristics that begin to reveal which way they might proceed, and Georgia’s federal class-action suit, Inniss v. Aderhold, is no different.
While so much is yet to be decided, we do at least have a roadmap for the next couple of months, expert consensus on the merits of the case, and a new character to introduce into the story.
THE NEXT STEPS
There are two options when serving a federal lawsuit. It can be served through a process server, which gives the defendants 20 days to respond, or it can be served through a waiver of service, which allows defendants 60 days to respond and saves both parties the expense of using a process server. Lambda Legal opted to serve a waiver of service.
“There were a number of reasons that went into this in terms of timing,” Beth Littrell, Lambda Legal senior attorney, tells the GA Voice. “We were serving a judge, and it seemed a responsible course not to serve the judge with a process server and instead give her an opportunity to waive service.”
Lambda Legal has heard back from one of the three defendants, state registrar Deborah Aderhold, who has decided to waive service. This means Aderhold has until June 22 to file a motion or answer under federal rules.
“So we have that timeline set and we’re waiting for the other two defendants [Gwinnett County Probate Court clerk Brook Davidson and Fulton County Probate Court Judge Pinkie Toomer], and they have until May 22 to respond or we will serve them with a process server,” Littrell says.
If that occurs, those two defendants would have 20 days to respond and would have to go to the expense of using the process server.
“I think it’s fair to say that we’ll hear from the other side by answer or motion by the end of [June],” Littrell says.
If the defendants decide to fight the 2004 same-sex marriage lawsuit, they may all be represented by Attorney General Sam Olens (whose office confirmed to GA Voice that he would defend the ban) or they may have their own law firms and representatives—however, no matter which defendant does what, all three would be part of the same trial.
So the case can break in several directions depending on what each party does in the next couple of months, and that’s not even taking into account the trial phase yet, if in fact a trial occurs, and subsequent appeals.
The Bostic case in Virginia was decided in favor of marriage equality in seven months on motions, without even going to a hearing or a trial, but the Proposition 8 case in California took just over a year and included a trial while the Iowa case took just under two years. So it’s too early to tell any sort of timeframe on when Georgia’s LGBT community can expect a decision, Littrell says.
JUDGE WILLIAM DUFFEY PRESIDING
Once the case was filed last month, it was given a case number, which triggered a random judge assignment—federal Judge William S. Duffey Jr.
Duffey was appointed by President George W. Bush in 2003 to the United States District Court for the Northern District of Georgia, but for any case-watchers looking to read the tea leaves, they might draw conclusions based on his most famous case as a prosecutor—Duffey was a deputy to independent counsel Kenneth Starr in the Whitewater investigation from 1994 to 1995. He later served as campaign finance chairman to President Bush before becoming U.S. Attorney for the Northern District of Georgia and then moving to the bench.
But constitutional scholar and HRC Atlanta co-chair Anthony Kreis is not too concerned about Duffey’s conservative credentials or his case history.
“While on the bench he has not handled any particularly high profile constitutional litigation or cases touching on major social issues, save his recent decision that invalidated the application of the Health and Human Services contraception mandate to Catholic nonprofits,” Kreis tells GA Voice. But Kreis says that case doesn’t give a “terribly great read” into how Duffey would handle Inniss v. Aderhold.
“Ultimately, while Judge Duffey is considered a reliably conservative jurist, I am confident that he will look at the facts and apply the law impartially as every federal and state court has done since Windsor by ruling against the state,” Kreis says.
Alex Reed is an assistant law professor at the University of Georgia and an expert on same-sex marriage rulings who says to look north to the Michigan gay marriage case for hope of a conservative judge ruling in favor of marriage equality.
Judge Bernard Friedman is a Reagan appointee who, in Reed’s words, “tore into the state’s expert witnesses” in Deboer v. Snyder before issuing a “blistering” opinion explaining why gay couples deserved the right to marry.
“I don’t think the fact that [Judge Duffey] is a Bush appointee is fatal, assuming that he is of a similar mindset to Judge Friedman out of Michigan,” Reed says.
Reed also doesn’t put too much stock in Duffey’s involvement in the Whitewater investigation.
“I think it’s easy to look at whom they’re appointed by or what careers they had prior to being a judge and predict how they might rule,” he says. “But I’ve been skeptical of a lot of that, particularly around the issue of same-sex marriage.”
‘HUMANIZING THE LEGAL ISSUE’
Ultimately, the chances of Inniss v. Aderhold delivering marriage equality to Georgia depend on the merits of the case. And all of the legal and constitutional scholars that GA Voice has spoken to about the case since it was filed last month have sang the praises of the legal team, the plaintiffs and the strategy.
Reed called the legal teams behind the case (Lambda Legal, Bryan Cave and White & Case) “three brilliant legal organizations.”
“I think they were very thoughtful and did a very good job selecting their plaintiffs,” Reed says, pointing out the teams’ inclusion of plaintiffs with children and plaintiffs who are police officers or who have served in the armed forces.
“I think it’s important in these types of cases to have plaintiffs who can humanize the legal issue for folks who may not know someone who is gay or lesbian,” Reed says. “I think the plaintiffs are all phenomenal, great people.”
Hillel Levin, an associate law professor at the University of Georgia and an expert on same-sex marriage rulings, echoes Reed’s sentiments, saying, “This is the perfect group of plaintiffs for this case. It also appears that they have chosen correct defendants, having followed the pattern of successful suits in other states.”
Eric Segall, a law professor at Georgia State University and a constitutional law expert, says, “The complaint is extremely well-written and presents a compelling case why same-sex marriage should be recognized in Georgia both as a constitutional matter and as a policy human rights matter.”
Segall believes the defendants will fight the case, although he admits he hopes they don’t. He also says the plaintiffs should win, citing the Windsor decision which struck down major portions of the Defense of Marriage Act last June.
“The equal protection clause should require Georgia to recognize same-sex marriage, otherwise Georgia will be denying to ‘persons’ within the state the ‘equal protection of the laws,’” he says.