Judge Larry Salmon, a Floyd County Superior Court judge, is sitting in for Justice Harold Melton, who worked as executive counsel for Governor Perdue when the amendment was drafted and passed. (Judge Salmon ruled in 2001 that a consent decree in a divorce that allowed custody to the wife so long as she was not cohabiting with someone to whom she was not married did not apply when the wife was living with her partner with whom she had celebrated a civil union. The ruling was premised simply on an interpretation of the terms of the existing consent decree, however, and was not a ruling about whether a same-sex couple should have custody.)
The Court interrupts the assistant AG (Stefan Ritter) as he begins his argument to ask whether there was overwhelming support for the ballot, and also whether the language on the ballot could have confused the voters. Ritter says that the trial court found it was not confusing. The Court queries whether the "right for any reason" rule should apply. Ritter says that the cases support the trial court's ruling.
The Court asks Ritter if the amendment is clear, what does it say? And, would it not have been more clear to simply mimic the state statute that already limits marriage to heterosexual couples? Ritter said they did not want to leave any question how other states' "unions" would be treated. What about same-sex benefits from other states that are not exactly the same as marriage? Ritter says that the amendment does not cover this -- it only covers proxies for actual marriage with all of the same benefits as marriage. (Notably, this would narrow the potential reach of part (b) significantly, because few states actually provide all of the same benefits as marriage to same-sex couples.)
The Court turns to the single-subject rule's requirement that the treatment of "unions" be "germane" to the accomplishment of a single objective. Ritter says the objective or purpose of the amendment is to limit unions between couples to those between a man and a woman, and he goes through each sentence of the amendment to explain how the sentence is germane. The sentence that troubled the trial court was the first sentence of part (b) regarding unions. Ritter says that the language limits its reach to unions that provide the same benefits as marriage. Thus, there is no single subject problem.
When the Court asks whether, if the amendment isn't limited as Ritter suggests, then wouldn't there be single-subject problems? Ritter does not quite answer this, and seems to back off of his position on the amendment as being limited to proxies for marriage, saying that the limits of the amendment may have to be tested later.
The Court asks how many states have struck down the plethora of similar amendments based on a single-subject violation. Georgia is the only one.
Does the fact that it was a well-publicized and litigated amendment and overwhelmingly approved by the voters change the burden of proof? Ritter says that he doesn't think so. (I think this was intended to be a softball for Ritter to talk about how much public information and support there was for the amendment, so that the Court should worry less that the voters were uninformed. However, Ritter missed that opportunity.)
Johnny Stephenson of Alston & Bird LLP argues for the plaintiffs-appellees. He contends that the amendment should have been presented as two separate amendments, because it forced the voters to vote all-or-nothing: either no measure regarding same-sex marriage, or a measure that not only prohibits same-sex marriage but enacts a number of additional limitations that the voters may not have chosen if had a choice.
The Court asks about whether the ballot provision was "misleading" or whether he contends it was "coercive"? Stephenson acknowledges that the standard for the language on the ballot provision is low, although this Court could certainly overrule that line of cases, but he points out that the bigger picture and the context of the single-subject issue is that the voters were stuck with voting on a single amendment that may not have expressed what they really wanted.
The Court asks whether it is significant that they used the word "union" instead of "relationship" in the first sentence of part (b) -- i.e. that "union" really does only refer to marriages or proxies for marriage, so there is no single subject problem. Stephenson says that actually, the word "union" is significant but for a different reason -- because the preexisting statute (which is otherwise identically worded) uses the word "marriage" where the amendment uses the word "union," we should assume the legislature intended something different from "marriage."
Part (b) is not merely a "full-faith-and-credit" provision? Stephenson says it is not -- future legislatures would be prohibited from affording any of the benefits of marriage to same sex couples. If that's the case, that is a different subject. The Court points out that the state just conceded that the amendment is only limited to relationships that are "tantamount to a marriage." Stephenson says he is troubled by the AG's position because what does it mean to be tantamount to marriage? What about a civil union that grants all benefits of marriage but one? There are difficulties in enforcement. (The subtext of his argument is that courts might push the line of "tantamount to marriage" back to "sort of like marriage" rather than being so all-or-nothing as Ritter suggests.)
Stephenson emphasizes that they have data showing the public has widely varying views on the extent to which benefits should be available to same-sex couples, and yet the public was left with a Hobson's choice on voting on this amendment as a single amendment.
Stephenson adds as an alternative that severability is an option. The portions of the amendment that are not central to the single objective could be severed. The Court points out that the trial court didn't do that, and this Court has not previously done so. Stephenson says the trial court may have felt constrained precisely because this Court had not previously struck parts of a provision violating the single subject rule.
The Court asks whether, if the amendment was read narrowly (i.e. reaching only unions that grant all of the benefits of marriage), then there would be no problem. Stephenson says if you read into the amendment words that aren't there, then yes.
Ritter in rebuttal goes back to a case relied on by plaintiffs regarding the single subject rule. He contends there was no coercion here.
And so concludes the argument.
