Are the Opponents of Gay Marriage Toying with Our Independent Judiciary?

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Mr. Cobb is Spalding Distinguished Professor of History, University of Georgia, Athens. He is the author of the book, Away Down South: A History of Southern Identity (Oxford University Press, Sept. 2005).

The uproar that exploded last week over Fulton County Superior Judge Constance Russell’s decision to overturn a 2004 constitutional amendment banning gay marriage in Georgia makes a mockery of our society’s professed belief in the need for an independent judiciary. More than 76 percent of voters supported the measure, but because it dealt with both gay marriage and the legal ramifications of same-sex civil unions, Russell ruled that, as it appeared on the ballot, the amendment was inconsistent with a more than a century-old constitutional proscription against putting before the voters any amendment requiring them to make decisions on more than a “single subject.” (The framers of this provision clearly had doubts that we Georgians were up to the challenge of multi-tasking.)

Russell was careful to indicate that she was not rendering a judgment as to “the wisdom, rightness, morality, or substantive constitutionality” of the amendment. In affirming the precedence of the single-subject rule, however, she did note astutely and insightfully that “People who believe men and women should have a unique and privileged place in our society may also believe that same-sex relationships should have some place—although not marriage. The single-subject rule protects the right of those people to hold both views and reflect both judgments by their vote.”

Unfortunately, the finer points of this excellent piece of reasoning were lost on Georgia Governor Sonny Perdue, whose election in 2002 broke a 130-year drought for the Republicans in this state. Although Russell’s ruling struck me as fairly straightforward, run-of-the-mill strict constructionism, it set Perdue to fulminating about “activist judges,” a label that seems to apply these days to any jurists who act contrary to any politician’s wishes in any way. There was also loud grousing about judges “thwarting the will of the people.” One might well question whether or not acceding to the will of the people is or should be part of a judge’s job description. Check out the legacy of Plessy v. Ferguson (1896), which shackled black southerners with nearly sixty years of institutionalized Jim Crow after the Supreme Court tailored its reading of the Constitution to accommodate widespread popular and scientific racism among whites. In the current case, however, Russell’s ruling actually seems more attuned to assuring that constitutional amendments are, in fact, focused, unequivocal expressions of the popular will as best it can be determined.

In any event, not one to quibble about the fine points of constitutional law, Governor Perdue has intimated that if the Georgia Supreme Court doesn’t overrule Russell in short order, he will call a special session of the legislature, at the cost of $30,000 to $40,000 of taxpayer money per day, to fine tune the amendment in time for this November’s balloting. The currently invalidated amendment barely passed the lower house of the Georgia legislature in 2004, but that was about 30 Democratic seats ago, and most of the state’s surviving big-time Democrats seem to be scrambling to squeeze onto Sonny’s bandwagon this time around. These include the party’s two leading gubernatorial candidates, one of them being Secretary of State Cathy Cox, who dismissed the amendment as “unnecessary” in 2004, given that Georgia already has what would seem a perfectly adequate, regular old garden-variety law against gay marriage. You don’t have to have your Ph.D. in punditry to see that after what might charitably be called a “lackluster” first term, Perdue knows a chance to get his somewhat lethargic troops frothing at the mouth when he sees one. Meanwhile, like their counterparts in national politics, Georgia’s Democrats seem unaware that, across the storied span of American political history, “us-too” has never proven to be a particularly compelling campaign message.

As it stands now, this whole sorry business presents a classic “lose-lose” scenario. Either the Georgia Supreme Court succumbs to political pressure and overturns what seems to be a fairly cut-and-dried ruling, or Perdue winds up presenting the voters with yet another opportunity for mean-spirited ideological overkill. Our nation’s vaunted separation of powers may always have been a polite fiction at best, but, if so, it is nonetheless a fiction far better maintained than abandoned. Regardless of the issue or the setting, when the people who aspire to make our laws set out deliberately to make those charged with interpreting those laws either their whipping boys or their stooges, they dishonor the offices they seek and undermine the institutions they have sworn to uphold.

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    More Comments:

    James C. Cobb - 5/23/2006

    I have been unable to locate the actual opinion. However, according to an amicus brief filed by by a group of law professors in Ga., this interpretation has been used before.

    Oscar Chamberlain - 5/23/2006

    Interesting about that wording in the amendment process; I wish I had read this comment before I made my second post above.

    However, the phrase you quote does not state, in so many words, that an amendment must focus on a single subject. It's a logical interpretation, but the case for the judge's action would be much stronger if that interpretation has been used before. Do you know if it has?

    Oscar Chamberlain - 5/23/2006

    You are right: I cannot look into your heart, and if I implied that I could, I was wrong.

    I can, however, see the results of actions. From the standpoint of gay and lesbian couples who want to make legal long-term commitment that places each other at the center of their lives, such an amendment is cold and cruel, regardless of what was in the hearts of those who framed it.

    You believe this is necessary to spare children from . . . ? Well you don't say. But even if a same sex couple is not as good as a heterosexual couple--all else being even--are they worse than a single parent? Are they worse than foster care? I accept the sincerity of your position, but I think you minimize the harm it does, and the ability of an unborn child to distinguish male and female voices is hardly a basis for discrimination.

    As for the constitutional question that you bring up, that is more interesting. I had assumed from the wording in the original article that there was a provision in the Constitution requiring amendments to have a single subject. It turns out that the situation is not that clear.

    There is nothing in the Georgia constiution's amendment article that indicates a requirement that an amendment be on a single subject. However, in the legislative article, Article III, Section V, Paragraph III there is this limitaion on bills:

    "One subject matter expressed. No bill shall pass which refers to more than one subject matter or contains matter different from what is expressed in the title thereof."

    Whether or not there is precedent in Georgia for reading that provision so broadly as to limiting all legislative actions, I do not know. The extent to which this was an improper interpretation would depend largely upon the existence of such precedent.

    James C. Cobb - 5/23/2006

    In reply to Mr. Chamberlain, I must point out that I never challenged Governor Perdue's prerogative to submit a constitutional amendment. Rather, I focused on his inflammatory rhetoric in labeling Judge Russell a "judicial activist" when she simply rendered a straightforward reading of the Constitution(see below) and in charging her with "thwarting the will of the majority" when he knows perfectly well that in matters of constitutional interpretation, the will of the majority, which as our current President will attest, can shift pretty quickly, should not always hold sway. Since Perdue's diatribe, I might add, the "letters" page of Atlanta Constitution has been awash in angry missives replete with with his exact words.
    Speaking of angry missives, I am happy to oblige Mr. Haskins in his request that I locate the authority for Judge Russell's actions and allay his doubts "that any word in Georgia's constitution can support" what she did. I suggest that he simply look again at the Georgia Constitution,Article 10, Section 1, Paragraph 2, which appears under the heading “Constitution, How Amended” and requires that “[w]hen more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately. . . .” Haskins's assertion that Russell's actions represent "the height of illegality and arrogance" because "the moment that amendment was ratified it was out of the reach of the judiciary" simply doesn't apply here. As I indicated by quoting her opinion, Judge Russell stated explicitly that she was not ruling on the constitutionality of the amendment itself, but rather on the process by which it was added to the Constitution.

    John E. Haskins Parents' Rights Coalition - 5/23/2006

    Perhaps Professor Cobb can find for me in the Georgia state Constitution some authority granted to courts to "strike down" amendments to their constitution submitted by the people? I do not deny the possibility that such an authority is to be found in Georgia's constitution, though I cannot find it.

    It is not good enough to argue that Georgia's courts have constitutional authority to "strike down" legislation. A superficial reading of the state constitution suggests they do, but there are forceful arguments to the contrary.

    It is an entirely different thing, however, as professor Cobb should know, for a judge or for anyone to claim a power to reverse a constitutional amendment. This is the height of illegality and arrogance. I doubt that any reading of any word in Georgia's constitution can support this assertion. The moment that the amendment was ratified, it was out of the reach of the judiciary. In fact they are sworn, on penalty of perjury, to uphold that amendment. I find it truly sad that a professor of history has not asked himself and others such questions. Massachusetts' constitution, by the way, in the most explicit language, denies courts the right to "strike down" ANY law, much more any amendment. The one man-one woman marriage law is still on the books here and the homosexual "marriage" licenses being distributed to homosexuals, are, as any good attorney should know, void and illegal. It is not even possible to find an argument that the Massachusetts high court's Goodridge ruling is legal and binding. Such is the force and clarity of the Massachusetts Constitution in its negation of ANY possible claim of judges to preside as gatekeepers of legislation and amendments. Nor is there any legal argument in defense of the legality of governor Mitt Romney's executive order that marriage licenses be given to homosexuals in violation of the law.

    Both the governor and the state's highest court have nakedly violated the constitution they swore to defend -- all in the interest of conjuring homosexual marriage against the will of an ostensibly self-governing people.

    Would the professor like to clarify how he knows -- since he claims to be defending Georgia's constitutional balance of powers, where and when the judiciary got the authority to undo -- not merely an unfashionable law now and then, but the state constitution itself? If the judges sit above the constitution, then who, praytell, sits over the judges? Professors?

    As for Oscar Chamberlain's comment that "Of course, any proposed amendment to ban gay marriages or anything like them is cold and cruel," I find that shallow and narrow-minded. Of my many homosexual and former homosexual friends over the years, none has ever called me "cold" or "cruel."

    What is cold and cruel -- in the extreme -- is aiding and abetting, even with such ad hominem rhetoric, the establishment of any social, political or "legal" regime that subjects children to two men or two women playing mommy and daddy. As if children, even from their time in the womb when they respond differently to mama's and papa's voices, could not tell the difference.
    Shame, shame that such fondness for denying the obvious is de rigeur in academia.

    The rules of this discussion board prohibit "defamatory" and bigoted" postings and those that "malign...religious groups."
    It is puzzling that Oscar thinks he is meeting this standard, even while labelling all those who disagree with him, "cold and cruel." Has he not considered that there are vast numbers of man and women of homosexual orientation who disagree with him?

    Oscar Chamberlain - 5/21/2006

    The demand that the court reverse its decision is outrageous. This was a badly written amendment that, in form, really did violate Georgia's constitution.

    However, the governor's alternative, which is rewriting the amendment and sending that to the people, is not a threat to the judiciary but, constitutionally, a legitimate action.

    Of course, any proposed amendment to ban gay marriages or anything like them is cold and cruel. And to the extent that the rewritten amendment remains an attempt to ban civil unions as well as marriages, it would also remain a constitutional mess that could harm a lot of people who are not gay or lesbian.

    Still, in defending the judiciary, it's important to distinguish actual attacks on its independence from constituitonal attempts to overturn or negate its judgements. That is not done in this article.