Cover Story: Goodbye, same-sex marriage ban?
Everything you need to know about the U.S. Supreme Court ruling that - fingers crossed - could end a sad chapter in state's historyThursday June 25, 2015 04:00 am EDT
Sted Mays has waited most of his life for this moment. In the early '80s, the then-20-year-old Athens, Ga., native was living in New York and working at Saks Fifth Avenue's bridal department when he met Charles Bjorklund, a Random House graphic designer 12 years his senior. They began dating, moved in together, and have remained a couple now for more than 30 years.
"It wasn't love at first sight," says Mays, who Bjorklund courted with Broadway plays and movie dates. "My brazen heart eventually melted and we fell in love."
For many years, even though they wanted to get married, they didn't have the right to do so. So Mays, now a 55-year-old studio artist, and Bjorklund, a 67-year-old graphic designer, have worked to advance LGBT rights through their organized activism. When they eventually relocated to Georgia in the late 2000s to be closer to Mays' ailing father, they vowed to stay unmarried until all Georgians could legally obtain a marriage license.
"Why should we have to go somewhere else when our lives are here in Georgia?" Mays asks.
Like all same-sex couples, Mays and Bjorklund currently don't have the right to get married in Georgia or have their marriages from other states recognized. Eleven years ago, Georgia voters overwhelmingly approved a constitutional amendment to outlaw same-sex marriage. Other states did the same in response to Massachusetts' decision to allow gay couples to get hitched. The U.S. Supreme Court's decision to overturn the Defense of Marriage Act in 2013 has resulted in some bans falling by the wayside, either voluntarily, or at the behest of lower courts.
Before the end of June, U.S. Supreme Court justices will decide whether same-sex couples in the remaining 13 states with bans should be subject to the same horrors of wedding planning that heterosexual couples endure. That decision would bring to an end a law that, as Mays notes, has deemed LGBT people second-class citizens.
"It's the civil rights issue of our generation and we're seeing it all unfold right now," says Dennis Collard, an Atlanta family law attorney at Kessler and Solomiany. "It's exciting. And it's something that's going to say a lot about the society we want to be, and say a lot about how far the Supreme Court will go to protect a class of minority citizens on a difficult political issue."
The Supreme Court ruling could take a variety of forms. There's the chance that the Justices will rule that same-sex marriage bans could stand, but that state governments would have to recognize marriages performed in other states where the unions are legal. That would mean same-sex couples who live in Georgia would have to visit Massachusetts, New York, or another state where same-sex marriages are an option, and then return.
Should Georgia's ban be overturned, courthouses across the state would soon start granting marriage licenses to people traditionally turned away. If Justices decide marriage is a constitutional right, it could open the door for future legal debates over whether LGBT people are a protected class. Some officials, taking a cue from other neighboring states, could ignore the ruling to impede the progress that comes with such a decision. There's also a small possibility the ban could remain intact, which would maintain the status quo for the foreseeable future. Or they could send the case back to the appellate courts, but that would only delay the inevitable.
With the monumental decision just days away, Creative Loafing looks at what the ruling could mean for LGBT people, the institutions forced to adapt to the decision, and the obstacles standing in marriage equality's way.
If the Supremes decide that same-sex couples are due the right enjoyed by heterosexual couples — and that a national patchwork of marriage laws is unsustainable and unfair to an increasingly mobile population — expect rejoicing and long lines at the Fulton County courthouse. And if Georgia's ban is upheld? The rejoicing will turn to outrage, forcing activists to retool their strategies.
Changes are a-comin' to Georgia if its same-sex marriage ban gets struck down. With Gov. Nathan Deal and Georgia Attorney General Sam Olens saying they'll support any U.S. Supreme Court ruling, local government officials have turned their attention toward fixing technical elements with the marriage process.
"Unless opposed by local officials, the implementation of the decision could be fairly easy because it literally only requires a change in forms to allow two grooms or two brides," says Atlanta family law attorney Dennis Collard. "No other legal aspect of marriage would have to be changed."
In counties across the state, officials are reconsidering everything from the paperwork to the personnel needed to officiate marriages. Those changes, which are small but important, have required months of discussions to ensure same-sex marriage can move ahead.
Denise Brogan-Kator, senior legislative counsel with the Family Equality Council, says executive-level officers such as the governor or attorney general should interpret gender-specific language in statutes dealing with marriage and parentage issues as gender-neutral. That can happen at the administrative level.
"Where the states say 'husband' and 'wife' they should be interpreted to read 'spouse,'" she says. "Instead of 'mother' and 'father' they should be interpreted as 'parent.'"
Ideally, the General Assembly would make legislative changes to state code so it would outlive elected officials' terms.
The Council of Probate Judges, the state's governing body of judges responsible for marriage licenses, has already looked at rewording the language on marriage license applications, which currently reference a husband and wife, to more gender-neutral language like "applicant one" and "applicant two." Its members began talking earlier this year about the potential changes that would need to happen if the ban is overturned. The Council has also informed probate judges across the state about the pending U.S. Supreme Court decision to ensure there are no surprises. In other states where courts have struck down same-sex marriage bans, elected officials have found ways to stall the process.
"We don't want to end up in the same situation as others states," Emanuel County Probate Court Judge Don Wilkes was quoted by the Daily Report as telling the Judicial Council of Georgia on April 23. "So, we're making sure we have everything in place."
Fulton County has also taken steps to get ready for life after the marriage ban. On June 3, Fulton's Board of Commissioners unanimously passed a resolution asking its probate court to find judges who would officiate marriages, which remains optional under state law. Fulton Chairman John Eaves recently met with the county's top judges and court clerks to discuss the changes needed to fall in line with the potential U.S. Supreme Court ruling.
If the U.S. Supreme Court strikes down the ban, Fulton and Georgia Equality will hold a mass marriage ceremony at the Downtown government complex to mark the historic occasion. Georgia Equality Executive Director Jeff Graham, who's organizing numerous events across the state for that day, says the LGBT advocacy nonprofit has reached out to "as many clerks and marriage license bureaus as possible" to ensure their compliance if the marriage ban ends. He notes that Georgia has 159 counties, more than any other state, which inevitably means more public officials play a role in the issuance of marriage licenses.
"We're looking for the red flags about their intent," Graham says. "What we're finding is the vast majority are giving neutral response, waiting for state of Georgia's guidance."
Don't expect any major pushback in Atlanta. In an effort to be inclusive, Eaves says he wants the process of obtaining a Fulton marriage license to be "as easy as possible." He hopes the county will be ready to officiate ceremonies within hours of the court's ruling.
"We want to take advantage of the historic moment," Eaves says. "If the announcement is made in the morning, we could be ready by noon."
Georgia is one of the last 13 states clinging onto a same-sex marriage ban. But Georgia's top officials, once adamant in their defense of the 11-year-old constitutional amendment, have recently signaled a willingness to support a U.S. Supreme Court's decision that overturns the state's ban.
Georgia Attorney General Sam Olens, who was a top defender of the state's gay marriage ban, two months ago called for state employees to follow the pending orders from the nation's highest court. Gov. Nathan Deal followed suit soon after. Despite their support, same-sex marriage in Georgia could come with a new set of barriers erected by other public officials hell-bent on refusing people the right to marry.
Similar efforts have already occurred in Southern states including Florida, Alabama, Arkansas, and North Carolina. In October 2014, a North Carolina federal judge struck down the state's same-sex marriage ban. Nevertheless, state lawmakers recently approved a controversial bill permitting magistrates and registers of deed to opt out of performing same-sex marriages based on their religious beliefs. Republican Gov. Pat McCrory vetoed the bill on the grounds that no official voluntarily choosing to swear an oath to carry out their constitutional duties should be exempt from those duties. State lawmakers subsequently overturned his veto.
Chris Sgro, executive director of North Carolina Equality, says the measure not only discriminates against LGBT couples, but also undermines access to marriage for all residents in a state with a history of denying marriage licenses to minorities. He says "extreme groups and extreme legislators" whose views on same-sex marriage don't reflect those of most residents pushed the bill.
"It's a dangerous precedent to say a government official can pick and choose their job duties," Sgro says. "Most employees don't have that ability. The employees of the state of North Carolina shouldn't be able to pick and choose who they want to serve."
Roy Moore, the Alabama Supreme Court's chief justice, apparently thought employees should. Earlier this year, Moore ordered Alabama probate judges to defy a decision from U.S. District Judge Callie Granade instructing judges in Mobile County to issue marriage licenses to gay couples. Numerous probate judges heeded Moore's orders. After months of uncertainty, Granade last month ruled that same-sex couples could wed throughout the entire state, expanding her prior ruling. Although she placed her ruling on hold until the U.S. Supreme Court made its final decision.
Meanwhile, Alabama state lawmakers have mulled legislation to replace marriage licenses with contracts that no longer required marriage ceremonies. The bill failed in the final days of the 2015 legislative session.
"In the end, we're going to have marriage equality in Alabama," says Susan Watson, executive director of the American Civil Liberties Union's Alabama chapter. "Do I think we'll get there without any hiccups? No."
The tactics have even extended to same-sex couples adopting children. Michigan Gov. Rick Snyder recently signed into a law a measure that would allow faith-based adoption agencies to refuse service to couples on religious grounds. According to the Detroit Free Press, the ACLU is considering a legal challenge.
Constitutional scholar Anthony Michael Kreis, who thinks Deal and Olens likely want to avoid a "PR disaster," doesn't expect to see opponents stopping couples from entering the courthouse in Georgia. Though some officials' assurances have quelled LGBT residents' fears in Georgia, Georgia Equality Executive Director Jeff Graham acknowledges judges and clerks in the state's 159 counties could still stand in the way of marriage.
Then, of course, there's the likelihood of fighting yet another "religious freedom" bill under the Gold Dome. Last year, state Sen. Josh McKoon, R-Columbus, and state Rep. Sam Teasley, R-Marietta, introduced companion bills that would have essentially allowed discrimination against people based on their sexual orientation.
"We don't know what will happen," Graham says. "... My hope is that six months of marriages before the legislative session will prove to the majority of people that allowing same sex couples to marry is not an affront to anyone's religious views, that it's a matter between two people and their families, and that legislation is not needed."
Chwanda Nixon and Kacey Frierson of Jonesboro have tied the knot in 14 states. Yet the law in Georgia still considers their love ‘nothing.’
In the five years they've been together, Chwanda Nixon and Kacey Frierson have said "I do" 14 times in as many states. The Illinois natives performed their civil union in their home state in April 2012. The following year, the Jonesboro residents and their daughters traveled to New York for spring break. Realizing that Connecticut, Rhode Island, and Massachusetts — states that all recognize marriage equality — were nearby, they decided to start tying the knot.
"We ended up doing eight in the first year," Nixon says.
Since then, the couple and their children have crisscrossed the country on the #IDoMarathon aiming to tie the knot in every state where same-sex marriages are recognized. Last year in Iowa, the actress Mo'Nique officiated the couple's marriage. Nixon and Frierson's next ceremony is scheduled for June 27 in Florida. Yet they still can't get hitched in Georgia.
"That would be the greatest one," Frierson says. "We live here and we'd be recognized here. Even though we've gotten married 14 times, we're still strangers here. Legally we're nothing to each other. Even though we live together, have kids together, a house together — everything together. We're still basically nothing in the eyes of the law here. So it'd be great for her to be my wife here, too."
"Ditto," Nixon says.
Reporting by Joeff Davis/Written by Thomas Wheatley
Many legal professionals are expecting the Supreme Court to recognize same-sex marriage. Considering that appellate courts across the country have struck down same-sex bans and the Supreme Court Justices have let those decisions stand, not taking action would not only be out of the ordinary, but it would also wreak havoc in terms of enforcing bans.
If same-sex marriage bans remain, says Denise Brogan-Kator, senior legislative counsel at the Family Equality Council, the country would have "such an incredible mishmash of laws and regulations." It would make it difficult for government officials to determine, for example, which same-sex couples could file joint tax returns. "It'd be an absolute impossibility to administrate that."
But everyone agrees that the Justices occasionally like to throw the country a curveball (hello, Citizens United v. Federal Election Commission!). Emory University School of Law Professor Tim Holbrook says the status quo for states such as Georgia that currently have same-sex marriage bans on the books would remain if that happened. Most of the 21 state bans on same-sex marriage that were invalidated by courts could go back into effect, he says.
Holbrook says states would have to sort out whether same-sex marriages performed during that time period were still valid. Georgia LGBT couples would still have to travel to states where same-sex marriage is legal to tie the knot. When they returned to Georgia, however, their marriages wouldn't be recognized, just like before. And the ripple effect that legalizing same-sex marriage could have on other injustices that same-sex couples in Georgia face — ease of adoption and medical visitation rights, for example — would not happen.
Life for LGBT couples would remain as it has been since 2004, when Georgia voters approved the same-sex marriage ban.
Although Georgia's LGBT couples aren't legally allowed to get hitched, they have been holding commitment ceremonies for some time. So the idea of same-sex ceremonies isn't foreign. But if the Supreme Court rules in favor of same-sex nuptials, some of the services that contribute to the special day — as well as the people who try to make the relationships work and, if necessary, end fairly — could see a new demand.
An August 2014 report by UCLA's Williams Institute found that legalizing same-sex marriage in Georgia would create an estimated $78.8 million economic impact. The report says more than $50 million would be generated in the first year of legalization alone.
"I'm seeing multiple small businesses and corporations shuffling to get ready for the changes once SCOTUS rules in our favor," says Kirsten Ott, the editorial director and co-founder of Equally Wed, an Atlanta-based magazine that caters to LGBT couples planning their weddings.
Some vendors are preparing to accommodate new customers. Cindy Brown of Cindy and Sharon, Same-Sex Wedding Photographers, a Decatur-based wedding photography business, is hoping for a boost in business. Brown's company has added new products, prepared a Facebook ad campaign to roll out after the ruling, and is participating in a July wedding industry trade expo in Piedmont Park that could see a bump in interest after the ruling.
Scott Leenan, a licensed professional counselor at Morningside's Intown Counseling and Wellness, has been counseling LGBT patients and couples for years. In the past few weeks, he's answered calls from potential patients interested in premarital counseling. Some Georgia counties waive a marriage license's application fee if different-sex couples undergo premarital counseling. So he's offering patients a 50 percent discount on the first visit.
Dennis Collard helps teach continuing-education courses to local attorneys about navigating tricky legal issues with LGBT couples. Think everything from taxation to adoption to separating assets after a relationship has run its course — the same issues that heterosexual couples experience, only those people have legal options afforded to them by virtue of marriage. If the Supreme Court ruling is favorable to same-sex marriage, he and his partner might have to tinker with their curriculum.
For decades, family law attorneys in Georgia have had to guide same-sex couples heading to Splitsville through mediation. Couples who are married in other states and move back to Georgia have to establish residency in those states to divorce legally. In the eyes of the Georgia legal system, LGBT couples in most cases don't exist. Some people have had to create "partnerships" — essentially contracts — in lieu of prenuptial agreements. Dividing up assets and property can be tricky.
"We won't wind up having 'gay divorce,' we will have gay people getting divorced," Collard says. "Because divorce will be exactly the same as it is for straight people."
Which is a reminder that soon there might be no need for qualifiers. Counseling, marriage, divorce — it's just people.