A Georgia federal judge disagreed with nearly every legal argument by four same-sex couples and the surviving member of a fifth couple seeking to marry, but nevertheless found that he could not dismiss their case.
U.S. District Judge William S. Duffey Jr. said in an opinion issued late Thursday that the couples do not have a fundamental right to marry a person of the same sex, but he disagreed that Georgia’s “interests in child welfare and procreation are advanced by the state’s prohibition on same-sex marriages.” The state filed a motion in August seeking to have the cased tossed out.
Duffey's ruling is a temporary victory for same-sex couples seeking to wed in a state where the Legislature passed a prohibition against same-sex marriage in 1996, and 72% of voters did the same in a 2004 measure.
But attitudes have shifted in the last decade. Same-sex marriage is now legal in at least 35 states and the District of Columbia.
Most federal appellate courts have ruled in favor of gay couples, and the U.S. Supreme Court has let those rulings stand. Only the U.S. 6th Circuit Court of Appeals, which covers Ohio, Michigan, Kentucky and Tennessee, has upheld same-sex marriage bans -- setting the stage for the high court to resolve differences among circuit courts.
Duffey's ruling means the Georgia case can proceed to trial. But much of his decision centered on the deficiencies of the same-sex couples’ arguments. He declined, for instance, to “extrapolate a fundamental right to marry a person of the same sex. … The court concludes that the Supreme Court’s decisions regarding the fundamental right to marry are confined to members of the opposite sex—a conclusion that is confirmed by the decisions of the Supreme Court.”
Duffey considered other types of marriages, previously forbidden, that were found to violate constitutional rights. Virginia’s anti-miscegenation law, prohibiting the marriage of whites to nonwhites, was struck down in 1967 by the U.S. Supreme Court, which found that “marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
The same concept led to the invalidation of a Wisconsin statute, which required people to prove that they had complied with child support obligations and that the children were unlikely to become “public charges.” Similar reasoning also tossed a Missouri statute forbidding inmates from marrying.
But in those cases, Duffey ruled, the right to marry, period, was being challenged. In this case, he wrote, the plaintiffs are permitted to marry; they are only forbidden from marrying a person of the same sex. That, Duffey says, is not a violation of their rights.