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

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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