Georgia's Gay Marriage Ban Still In Effect, But Legal Ground Grows Shaky

Jun 26, 2013

Credit Envois via Flickr

Shortly after the U.S. Supreme Court ruled that married gay couples couldn't be denied federal benefits under the Defense of Marriage Act, Georgia Attorney General Sam Olens emphasized the ruling would have little impact on the state’s 2004 constitutional ban on same sex marriage.

"Today's decision rests on the basic assumption - with which I strongly agree - that the power to define marriage is a power traditionally reserved to the States. The decision does not affect existing state definitions of marriage; in fact, it explicitly says that it is limited to marriages recognized by states as lawful," said Olens in a written statement. 

Michael Perry, a constitutional law professor at Emory University, agreed the state ban is safe for now. But long-term, he said it's far more vulnerable to a legal challenge.

“To the extent the court said moral disapproval is not an acceptable basis for legislation under the 14th Amendment, well, eventually that’s going to create a problem for states like Georgia because that’s the very rationale that states like Georgia base their anti-same sex marriage policy on.”

Attorney Anthony Michael Kreis, political co-chair of Human Rights Campaign-Atlanta, agreed.

“I believe Justice [Anthony] Kennedy in couching it in terms of equal protection and not in terms of federalism and some other ways that he could have couched it, really put the writing on the wall that the tide of equality and marriage equality will not escape Georgia for long."

Kreis said the most immediate question for Georgians, at least in terms of potential benefits, is what the ruling will mean for gay couples who marry in other states but reside in Georgia.

”That might be able to be easily fixed through executive orders, through rules promulgated by the Social Security Administration or IRS in which case legally married same sex couples that reside in Georgia might be able to actually reap the benefits provided by the federal government in terms of tax deductions, Social Security benefits, immigration status, and the like.”

Until federal officials respond, either by establishing new rules or opting to leave the issues unresolved, Kreis said the ruling's impact remained unclear.

Meanwhile, in terms of challenging Georgia’s ban, Kreis said local advocates may not want to rush into action. He points out that same sex marriage bans in three other states are already being challenged in court. He said Georgians need to prioritize.  

“Is it worth the time of local entities to invest in lawsuits when we have many other pressing issues in Georgia including the fact that you can be fired because you’re gay. That’s an equally important issue that DOMA or marriage equality itself won’t resolve.”

Over the years, legislative efforts to do just that haven’t faired well. Most recently, state Rep. Karla Drenner (D - Avondale Estates) sponsored a bill aimed at making it illegal for the state to consider sexual orientation when hiring. That bill is currently stalled in committee.