Last-minute hopes of blocking Georgia’s gay marriage amendment from the ballot fell flat Oct. 26, when the state’s highest court declined to rule on the constitutionality of the proposed ban before voters have their say.

After a brutal 10-month battle, waged from the halls of the General Assembly to the streets of Atlanta and finally to the judiciary, the measure dubbed Amendment 1 now heads to the Nov. 2 ballot.

Opponents plan a flurry of outreach leading up the vote, but it is expected to easily pass. A recent Zogby International/Atlanta Journal-Constitution poll found that more than 60 percent of likely Georgia voters intend to vote in favor of the measure.

“Our plans remain the same, despite the ruling,” said gay state Rep. Karla Drenner (D-Avondale Estates), campaign director for Georgians Against Discrimination, a coalition fighting Amendment 1.

“We’re continuing to warn voters about the potential impact of the amendment on Georgia’s families,” Drenner added.

The Georgia Supreme Court ruled 5-2 that it does not have the authority to strike Amendment 1 from the upcoming ballot, but left the door open to a post-election challenge.

“The judiciary is vested with the power to determine the constitutionality of legislation, but at present there is simply no legislation which can be the subject of a constitutional attack,” Justice George H. Carley wrote for the majority. “The election has yet to be held, and the amendment thus remains only a proposal.”

The majority opinion affirmed the Sept. 29 ruling by Fulton County Superior Court Judge Constance Russell that the principle of separation of powers prohibits Georgia courts from intervening in “legislation while it is in the process of enactment.”

Seven plaintiffs — represented by the ACLU of G eorgia, Lambda Legal Defense & Education Fund and law firm Alston & Bird — filed suit on Sept. 16 seeking to strike Amendment 1 from the ballot on the grounds that it violates the Georgia Constitution’s single-subject rule by packaging multiple subjects into a single amendment.

If faced with the question as crafted, voters who support a heterosexual definition of marriage, but also are in favor of rights being extended to same-sex couples, will not be able to vote their conscious, argued Johnny Stephenson, a partner with Alston & Bird and lead counsel for the plaintiffs.

Neither Russell nor the high court addressed the merits of that complaint, instead citing a 1920 Supreme Court ruling known as Gaskins v. Dorsey that prevents courts from getting involved until the legislative process is complete.

“I’m disappointed the court didn’t act to remove the amendment from the ballot, but I take comfort knowing their decision was based on Gaskins and left the case open for a post-election challenge,” Drenner said.

Conservatives lauded the ruling, even while recognizing the potential for a post-election challenge if it is approved.

“The legislature makes the law based on the support of the people — it is their place to make the law, it is the role of the judiciary to interpret the law,” said Todd Young, policy director for the Southeastern Legal Foundation, a conservative legal group. “And we don’t have a law right now to be interpreted.

“The court, I think, went to some pains to say that the merits of whether the single-subject rule is violated here in this amendment cannot be decided at this time,” Young added.

Sadie Fields, chair of the Christian Coalition of Georgia, shepherded the amendment through the General Assembly earlier this year. Fields, who has a lesbian daughter, refused to comment to Southern Voice, but told other media outlets that she was pleased with the ruling.

Chief Justice Norman Fletcher and Justices Harris Hines and Hugh Thompson joined Carley in the majority, with Justice Carol Hunstein writing a concurring opinion.

Presiding Justice Leah Sears and Justice Robert Benham dissented.

Only the first sentence of the amendment will appear on the Nov. 2 ballot: “Shall the constitution be amended so as to provide that this state shall recognize as marriage only the union of man and woman?”

Section B, which will not appear, states: “No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage.”
Opponents argue Section B will have wide-ranging effects, from civil unions and domestic partner benefits to parental rights and hospital visitation for gay couples.

Merits of case still undecided
Throughout the majority opinion, Carley makes clear that the court is not ruling on whether the proposed amendment is valid or flawed.

“The amendment in question certainly can be challenged in the event it is ‘enacted’ by virtue of approval by the voters,” Carley wrote. “However, the judiciary does not have any jurisdiction to block further consideration of the amendment at this formative stage in the legislative process.”

During oral arguments Oct. 19 before the Supreme Court, Stephenson said the courts must prevent voters from facing an unconstitutional dilemma in the voting booth.

The “legislative process” that determined how the question would appear on the ballot was completed when the General Assembly approved the amendment in February and March, he argued.

After the high court ruled, Stephenson said he respected the decision but believed “tens of thousands of voters are going to suffer irreparable injury” by being forced to vote against something they support — civil unions or other legal arrangement for gay couples — in order to vote in favor of a heterosexual definition of marriage.

“I believe there is a right to be free from coercion in the ballot box,” Stephenson said.

But the court ruled Stephenson’s contention that voters have a right not to be presented with unconstitutional proposals is flawed.

“The fallacy in the appellants’ argument is their insistence that they have a legal right not to participate in an election wherein a proposed constitutional amendment may not withstand judicial scrutiny in the event it is passed,” Carley wrote. “However … they are entitled to campaign against the enactment of the proposed amendment and, if they are unsuccessful in that effort, they may bring a challenge to its constitutionality on any arguably meritorious basis.”

Young, from the Southeastern Legal Foundation, agreed that a post-election challenge is an appropriate route for opponents of the measure, and added that even some conservatives believe such a challenge would lead to the amendment being ruled unconstitutional.

“How [the court is] going to eventually come down, it’s reall

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