Same-sex marriage discussion grows, but change is unlikely

ATLANTA --- As the number of states legalizing same-sex marriage grows, Georgia remains locked into a ban voters added to the state constitution. Some experts say there's a chance that ban could disappear.


Same-sex marriage or civil unions are now legal in six states, either through legislative action or court decisions.

The wave might not be quick to hit Georgia. Three out of four voters in 2004 supported adding a ban to the state constitution on top of a state law in place.

Still, the topic is becoming an issue in county and municipal elections and might be a factor in next year's gubernatorial and legislative races, said political consultant Bill Crane of Atlanta-based Hudson/Crane.

"Though the issue is largely being driven by gay-rights activists and organizations like the ACLU, it is also already a popular question at candidate forums for the 2009 Atlanta mayoral race," he said.

Paul Cates, of the American Civil Liberties Union's Gay and Lesbian Rights Project, doesn't expect Georgia voters to quickly switch, but the McDonough, Ga., native said that from his vantage point in New York, court challenges could force the change.

Challenges are already filed in federal district courts that could reach the U.S. Supreme Court.

The most prominent challenge is to California's ban, filed by former Bush administration solicitor general Ted Olsen on behalf of a couple. Mr. Cates and some legal experts think Mr. Olsen's arguments that the ban discriminates against homosexuals could be persuasive under the U.S. Constitution's equal-protection clause.

Other legal scholars are doubtful. They note that marriage has generally been left to the states and that the Supreme Court only prohibited states from banning interracial marriages in 1967 because race appears three times in the U.S. Constitution. Sex does not.

There is another provision in the U.S. Constitution, the full-faith-and-credit clause, that requires states to recognize each others' laws. But it has a loophole that would prevent a same-sex marriage challenge from succeeding, says Michael Broyde, a professor at Emory Law School and the director of the school's Center for Law and Religion.

No state has to recognize a law from another state if it is "repugnant" to public policy and values, he said. States have prevailed in using that exception to not recognize polygamous marriages, those between first cousins and underage spouses.

Only 32 percent of Americans support gay marriage, according to the Pew Forum on Religion and Public Life. That's the reason most gay-rights groups urge waiting and because a loss in the Supreme Court could cement legal opposition for a generation.