Mar­riage law­suit: When will one be filled in Ga.?

Lambda Le­gal prom­ises an­nounce­ment about lo­cal same-sex mar­riage case ‘very soon’

GA Voice - - Front Page - By PATRICK SAUN­DER psaun­ders@the­gavoice.com

Al­most ev­ery week, a new one ap­pears. At first it made sense. Colorado. Ore­gon. Wis­con­sin. But then, wait—Mis­sis­sippi? Florida? Alabama? Mar­riage equal­ity law­suits have been filed now in all but five states in the na­tion—the fi­nal five that re­main out of the game are North Dakota, South Dakota, Mon­tana, Alaska and, yes, Ge­or­gia.

In 2004, Ge­or­gia vot­ers ap­proved a con­sti­tu­tional amend­ment defin­ing mar­riage as only be­tween a man and woman. But since that time a sea-change has taken place in the na­tion with polls show­ing more than 50 per­cent of the coun­try sup­port­ing same-sex mar­riage.

So the dock­ets are full with same-sex mar­riage suits al­most every­where else in the coun­try, and every­where else in the south, but here—this de­spite wins in ev­ery federal court case since the United States v. Wind­sor de­ci­sion last June when a ma­jor por­tion of the De­fense of Mar­riage Act was struck down.

“I’m just as be­fud­dled as ev­ery­one else,” says con­sti­tu­tional scholar Anthony Kreis. “I don’t think there’s any strong rea­son why Ge­or­gia shouldn’t have a chal­lenge to the mar­riage amend­ment.”

Nashville at­tor­ney Abby Ruben­feld knows about the chal­lenges of fight­ing a same-sex mar­riage suit in the south, but that didn’t stop her from fil­ing. She is the lead at­tor­ney on Tanco v. Haslam, the district court case in Ten­nessee that led the judge to rule last month that three gay cou­ples’ mar­riages per­formed out of state are le­gal. The case is cur­rently un­der ap­peal.

“I did not wait for any­one to tell me what they thought about the Sixth Cir­cuit or Ten­nessee or any­thing else,” Ruben­feld tells GA Voice. “I thought that the Wind­sor rul­ing means all such dis­crim­i­na­tory laws and con­sti­tu­tional amend­ments are un­con­sti­tu­tional, and why should the south be any dif­fer­ent?”

“I think that change will come here when we all push it, so I push it in Ten­nessee,” she continues. “I think our move­ment is go­ing to win these cases wher­ever we bring them and the time is now.”

But that doesn’t mean there isn’t an enor- mous amount of move­ment hap­pen­ing be­hind the scenes by people and or­ga­ni­za­tions across the coun­try to find a ju­di­cial so­lu­tion to make same-sex mar­riage a re­al­ity in Ge­or­gia. And one na­tional or­ga­ni­za­tion is closer to fil­ing than you think.

‘GE­OR­GIA WON’T BE LEFT BE­HIND’

When fil­ing a same-sex mar­riage law­suit, it’s pos­si­ble to do so with a pri­vate at­tor­ney, but typ­i­cally the suit is ar­ranged or at least backed up by a ma­jor na­tional or­ga­ni­za­tion like Lambda Le­gal, the ACLU, the South­ern Poverty Law Cen­ter or Free­dom To Marry. All four and more have been at work iden­ti­fy­ing the right sit­u­a­tion in which to file in Ge­or­gia, but one of them hints about how close they are to fil­ing.

“We have been work­ing to iden­tify the best course of ac­tion to bring mar­riage equal­ity to Ge­or­gia,” Lambda Le­gal Se­nior At­tor­ney Beth Lit­trell tells GA Voice. “We will be an­nounc­ing the re­sult of that work very soon. I can as­sure you Ge­or­gia won’t be left be­hind when it comes to mar­riage equal­ity.”

The pri­mary chal­lenge most of­ten cited by Lambda Le­gal and oth­ers who are look­ing to file suit is a 2004 de­ci­sion in the U.S. Court of Ap­peals for the Eleventh Cir­cuit based in At­lanta 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, Flor- ida 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.

How­ever, doubts re­main about the dan­ger posed by the Lofton case.

“I think it’s highly im­plau­si­ble that the cir­cuit court will give that 2004 de­ci­sion a lot of weight,” Kreis says. “The le­gal land­scape has dra­mat­i­cally shifted in fa­vor of same-sex cou­ples’ rights.”

Kreis points out that the Lofton de­ci­sion came just six months af­ter Lawrence v. Texas, which made same-sex sex­ual ac­tiv­ity le­gal across the coun­try, and just a few months be­fore Mas­sachusetts le­gal­ized same-sex mar­riage.

“I think [Lofton] was made at a time when the court may not have un­der­stood where the tra­jec­tory of the law was go­ing. That’s fur­ther fac­tored by the Wind­sor de­ci­sion last June,” Kreis says. “I un­der­stand the cau­tion that some folks have be­cause the Eleventh Cir­cuit is very con­ser­va­tive, but that hasn’t stopped other people from fil­ing suit.”

ACLU of Ge­or­gia Ex­ec­u­tive Di­rec­tor Deb­bie Sea­graves says, “There is no deny­ing that the sit­u­a­tion that folks are in right now is un­just. Un­for­tu­nately, the law and jus­tice are not al­ways the same thing. What we want to do is get jus­tice through the courts, but we have to do it right.”

IS­SUE MORE COM­PLEX THAN FIND­ING SOME­ONE WILL­ING TO SUE

Lambda Le­gal says they are hear­ing from gay cou­ples through­out Ge­or­gia will­ing to file suit, but that it’s not that sim­ple.

“Hav­ing out­raged cou­ples will­ing to be plain­tiffs has never been the prob­lem,” Lit­trell says. “There are lots of folks will­ing to put them­selves out there to help move the ball along and win mar­riage equal­ity in all states. But the cal­cu­lus is just a lit­tle more com­plex than, ‘Can you find some­one that’s will­ing to sue?’”

While mostly it’s the mer­its of the case and past case law that fac­tor into whether to file or not, the ex­perts say there are many other fac­tors at play.

“Cer­tainly com­pelling nar­ra­tives are help­ful in con­vinc­ing a court. Longevity in terms of re­la­tion­ship and com­mit­ment are help­ful. Edie Wind­sor’s story re­flects that,” Lit­trell says. “But at the same time she had a very iden­ti­fi­able harm which al­lowed her to sue. You need an iden­ti­fi­able harm and a state of­fi­cial who is caus­ing that harm.”

Tech­ni­cally, any­one could walk into district court right now with their lawyer and file a same-sex mar­riage law­suit. But it’s not rec­om­mended. The amount of time, money and re­sources needed to un­der­take a suc­cess­ful case are large enough, but there’s also an enor­mous loss of pri­vacy.

“That’s the dif­fi­cult thing about con­sti­tu­tional lit­i­ga­tion is folks just want to live their lives and be left alone,” says Kreis. “But in or­der to con­serve those rights, you have to give up that pri­vacy.”

“Some cou­ples think they want to be the plain­tiffs in a federal law­suit and have sec­ond thoughts,” Lambda Le­gal’s Lit­trell says.

The ACLU of Ge­or­gia’s Sea­graves points out that in ad­di­tion to those fac­tors, you have to look at the word­ing and the scope of the par­tic­u­lar mar­riage ban in place in each par­tic­u­lar state.

“If you don’t do that, you run a dan­ger of mak­ing bad law and mak­ing the next case that some­one else brings harder,” Sea­graves tells GA Voice.

Lambda Le­gal’s Lit­trell con­curs, say­ing, “It could stop the mo­men­tum, and we want to keep build­ing on that. That’s a fear—a case brought hap­haz­ardly or just based on prin­ci­ple and not thought through.”

That kind of case, by all ac­counts, could set the fight back by years.

But while many dis­agree on the tim­ing of such a law­suit, ev­ery­one agrees on one thing.

“There will be people that chal­lenge the Ge­or­gia law,” Kreis says. “I think that, es­pe­cially in the le­gal and aca­demic com­mu­nity, a clear un­der­stand­ing of the Wind­sor de­ci­sion is that all these state mar­riage bans have to fall. It’s just a mat­ter of time.”

Beth Lit­trell, se­nior at­tor­ney in the South­ern Re­gional Of­fice of Lambda Le­gal, says to ex­pect an an­nounce­ment ‘very soon’ about a mar­riage equal­ity law­suit in Ge­or­gia. (Photo via Lambda Le­gal)

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