High court put in center of gay marriage furor

The emotional hubbub over Georgia's gay marriage amendment has suddenly placed the Georgia Supreme Court just where it doesn't like to be - squarely in the center of public controversy in the middle of an election year.

Four of Georgia's seven Supreme Court justices are up for election this year. They are running in a brand new system, one designed to bring more Republicans to the court in contested elections.

The scheme could backfire. The incumbents could be running in the midst of a gay-bashing fight. More likely, the justices might feel compelled to douse the fire before it ever starts. Observers agree that Justice Harold Melton, Gov. Sonny Perdue's lone appointment to the high court, is liable to face the toughest opposition.

Three other justices - Hugh Thompson, Carol Hunstein and George Carley, all appointed by Gov. Zell Miller - also will be on the ballot. They are slightly less visible than Melton (and Perdue), but their low profiles don't guarantee clear passage to another term.

Candidate qualification for the nonpartisan judicial posts opens June 25 and closes June 30.

The possible contest for the courts was considered a yawner, hardly worthy of much coverage, until last week when:

•Fulton Superior Court Judge Constance Russell decided Georgia's 2004 constitutional amendment banning same-sex marriages was unconstitutional. She took 18 months to discern that the amendment contained a basic flaw; it dealt with more than a single topic. Some learned authorities say Russell is in error, that the amendment is correctly drawn. Nevertheless, her ruling has been filed and published.

•Perdue stepped right in. Never wanting to miss a chance to bash gays or put the appellate courts on the spot, he demanded that the Georgia Supreme Court overturn Russell's ruling before Aug. 7.

•If the justices don't follow the governor's orders, Perdue said he would call a special legislative session to place the gay marriage amendment again on the ballot - for the Nov. 7 general election.

That chain of events set ambitious and inquisitive minds wondering. Most eyes fell on Melton, a young black lawyer with limited experience whom Perdue appointed to Georgia's highest court last year.

Melton's appointment angered some members in the legal profession. Several noted lawyers complained Perdue had dissed the tribunal with such a junior-grade appointment.

Perdue privately told his pals that he appointed Melton because he knew that Melton could be counted on. Former Attorney General Mike Bowers, Perdue's top adviser on legal appointments, played an important role in Melton's appointment. The governor pointedly ignored the recommendations of Sen. Saxby Chambliss and Sen. Johnny Isakson to name to the bench a well-qualified and popular south Georgia legal scholar.

Under the old rules that until this year governed judicial elections, Melton and his colleagues would have escaped scrutiny and a possible challenge. Judicial qualifications would have closed weeks ago. The judicial elections would have been settled in "nonpartisan primaries" in July.

However, Republicans pushed through new regulations to reset the judicial elections in November, thus delaying candidate qualification. To Republicans, the plan looked like such a good idea at the time.

Court watchers expect Melton to recuse himself in the gay marriage appeal. He was part of the Perdue administration when the amendment was offered at the governor's urging. A recusal by Melton likely means that Chief Justice Leah Sears would appoint an outside judge to take his place. Selection of the outsider could provide a strong hint as to how the court will rule.

If the court overturns the lower court decision, the gay marriage issue could become moot before the election. Some speculate that the impending judicial election virtually assures that the court will reverse Russell's ruling, thus depriving Perdue of a ballot issue designed to turn out the faithful and letting the court avoid a political minefield.

If the court upholds the lower court or even delays ruling until after Perdue's pre-ordained deadline, watch out. Gay rights will again become a key issue in the 2006 election campaigns, and Georgia will regain its status as cable news laughingstock. Every story about Georgia will include "backward" and, in more literary climes, "benighted."

P.S. Regardless, young Melton had better brace himself. Challengers are already jockeying for a possible bid for his seat. Georgia Court of Appeals Judge J. D. Smith is among those prominently mentioned to go for the Supreme Court seat.

Syndicated columnist Bill Shipp writes on Georgia politics. Write him at P.O. Box 440755, Kennesaw, GA 30160, or e-mail bshipp@bellsouth.net. His Web site is www.billshipp.com.