A major sticking point in Georgia Attorney General Sam Olens’ motion filed yesterday in the lawsuit challenging the state’s same-sex marriage ban was the exact meaning of the U.S. Supreme Court’s decision last year to strike down major parts of the Defense of Marriage Act in their Windsor decision.

Olens believes it meant that decisions on marriage equality should be left up to the states, while Lambda Legal’s attorneys, who represent the plaintiffs in the case, think he’s flat-out wrong.

Hillel Levin, an associate law professor at the University of Georgia and an expert on same-sex marriage rulings, says it’s difficult to tell either way.

“It is not a frivolous argument, since the Supreme Court’s opinion in Windsor is itself inconsistent and unclear as to whether it was decided on the basis of states’ rights or equality,” Levin says. “But as Justice Scalia pointed out in his dissent in Windsor, and as the overwhelming majority of courts around the country have since held, the Windsor majority opinion at least strongly suggests that recognition of same-sex marriage is required by the Constitution. So Olens’ arguments are not frivolous, but they have not persuaded most judges.”

Eric Segall, a Georgia State University law professor and constitutional law expert, agrees, saying, “I think the Windsor decision could be read many different ways but the best reading is that animus against gays and lesbians do not justify laws banning same sex marriage at any level of government, and that nothing in his brief suggests any reason for the ban other than animus.”

The next step is to wait for Judge William S. Duffey Jr. to rule on Olens’ motion to dismiss, and the experts say it’s unclear when he will rule.

“There is no reason that he should take much time, since the arguments are very clear and there is every reason to think that Judge Duffey has already thought deeply about these questions,” Levin says. “But judges have a good deal of latitude in managing their dockets, so there is no guarantee that he will rule quickly–particularly if other courts in the Eleventh Circuit are already moving on the question.

In any event, it is much more critical that Judge Duffey rules than how he rules. However he rules, the Court of Appeals will ultimately review his decision. Judge Duffey’s ruling will allow that appeal process to get moving.”

Georgia Equality is gathering supporters to join them on the steps of Atlanta City Hall today at 5 p.m. for a public rally to urge Olens to drop the defense of the ban. This is the second public action the group has done to put a face on who is harmed by Olens’ action, following a July event where Georgia Equality supporters and families delivered 3,000 signed petitions to the attorney general’s office.

Greg Hecht, Olens’ Democratic opponent in the Nov. 4 attorney general race, has vowed to drop the defense of the ban if elected, and he could turn out to be a bigger draw to the polls on election day for the LGBT community than his fellow Democrats at the top of the ticket.

A Survey USA poll released yesterday, Oct. 22, showed Olens at 47 percent and Hecht at 40 percent. That’s a three percent drop for Olens from a Survey USA poll a week earlier, when he was within the margin of error. But while Hecht has some ground to make up in the next 12 days, there are still 13 percent in the race who are undecided so this could go either way as the campaign enters its final days, especially if enough LGBT voters show up to support the Democrat for supporting them.

Early voting continues through Oct. 31. Check here for early voting locations near you, and use our LGBT Voter Guide for even more resources.

psaunders@thegavoice.com | @patricksaunders

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