ATLANTA - A ban on gay marriage approved by Georgia voters should be set aside as a violation of the single-subject requirement for amendments to the state constitution, a lawyer for the measure's opponents argued before the Georgia Supreme Court on Tuesday.
The language on the 2004 ballot, which was ratified by an overwhelming 76 percent of voters, simply prohibited same-sex marriages.
But the underlying resolution adopted by the General Assembly earlier that year also prohibits partners in same-sex unions from being entitled to the "benefits of marriage.''
Since marriage and domestic partner benefits aren't the same thing, voters were being asked in a single question to decide issues on which they might hold conflicting views, said Johnny Stephenson, a partner with the Atlanta law firm Alston & Bird.
"Even the president of the United States could not have voted his conscience on this amendment,'' Stephenson said, referring to public stands President Bush has taken opposing gay marriage but favoring some benefits for same-sex partners.
But Stefan Ritter, an assistant attorney general representing the state, said the amendment complies with the single-subject standard established in Georgia case law because it was intended to accomplish a single purpose.
"Voters know what they were voting on ... to limit the rights and benefits of marriage only to unions between a man and a woman,'' he said.
Although gay marriage already was illegal under state law, Republican leaders pushed the constitutional amendment through the General Assembly following a court ruling in Massachusetts that legalized same-sex marriages in that state.
Gay rights advocates sued prior to the November 2004 election to block a vote on the amendment. But Fulton County Superior Court Judge Constance Russell allowed the measure on the ballot, ruling that the courts did not have a legal right to interfere with proposed constitutional changes before voters had their say.
However, Russell did overturn the amendment this spring, ruling that it violated the single-subject requirement.
Republican Gov. Sonny Perdue responded by announcing that he would call a special legislative session in August if the Supreme Court does not reverse Russell's ruling. He set Aug. 9 for the start of the session so that lawmakers could redraft the gay marriage ban
in time for this November's ballot.
On Tuesday, Stephenson suggested that the justices have the legal authority to resolve the dispute by severing from the amendment the provisions that don't relate directly to same-sex marriage.
But Justice Carol Hunstein was dubious about that approach.
"We have never done that,'' she told Stephenson.
If the court doesn't issue a ruling by Perdue's deadline or upholds Russell's decision, lawmakers could accomplish the same thing by breaking the amendment into two or more resolutions and resubmitting them to the voters as separate ballot questions.