High court keeps gay marriage ban on ballot

ATLANTA - The Georgia Supreme Court refused Tuesday to block next week's vote on a proposed constitutional amendment to ban gay marriage.

Reaffirming an 84-year-old decision, the court said judges lack authority to intervene in contests over proposed legislation or constitutional amendments until the legislation has been passed or the amendments approved by the voters.

A superior court judge cited the same ruling last month in refusing to block the vote. Her decision was appealed to the state Supreme Court.

Georgia is one of 11 states with gay marriage ban amendments on the Nov. 2 ballot. Opponents had hoped to keep the votes from being counted.

In the Georgia case, they argued the amendment was flawed because it contains more than one subject. They also claimed the summary which voters will see on the ballot is misleading.

In a 5-2 decision, however, the majority wrote that the only issue before the court was ``whether the judiciary is authorized to interfere in the constitutional amendment process'' before the issue goes to voters.

Like their predecessors on the court in 1920, they concluded no such power is given to the judiciary.

The amendment ``certainly can be challenged in the event it is enacted by virtue of approval by the voters,'' the majority held, but at this point in the issue ``the judiciary does not have any jurisdiction to block further consideration of the proposed amendment...''

Judge Carol Hunstein sided with the court's majority but wrote a special concurrence arguing that the court's power was not as limited as the other four judges believed in cases involving the single-subject rule. Still, she said that because of time constraints voters were better served if the amendment remained on the ballot.

Justices Leah Ward Sears and Robert Benham were the dissenters.

Sears argued that the state should not count the votes because the proposed amendment violates the single-subject rule and presents voters with a difficult choice. Some may support a ban on gay marriage but would not wish to embrace other portions of the amendment, she said.

In addition to banning gay marriage the only portion spelled out on the ballot the amendment also specifies that the state need not recognize same-sex marriages performed by other states and declares that Georgia courts will have no jurisdiction to settle property division disputes arising from same-sex unions.

``I'm absolutely delighted that the Georgia Supreme Court saw fit to allow this to go forward and give the voters of Georgia a voice on an issue of this magnitude,'' said Sadie Fields, chairman of the Christian Coalition of Georgia. ``I'm delighted a majority of this court saw fit not to encroach into the legislative branch of government.''

Attorney Jack Senterfitt, who challenged the amendment on behalf of the gay rights legal organization, Lambda Legal, said, ``We are disappointed the court declined to reach the merits before the election. However, we are encouraged by the fact that the court did not say that the merits could not be reached. They simply said this could be challenged after the election.''

In the meantime, he said, the group believes more attention has been brought to the amendment and ``we're very hopeful the citizens of Georgia will reject it.''

A recent poll by The Atlanta Journal-Constition and WSB-TV showed more than 60 percent of voters express support for the amendment.

Dick Pettys has covered Georgia government and politics since 1970.