The ACLU of Georgia, flanked by Alston & Bird and Lambda Legal, filed a lawsuit that challenged the proposed Georgia constitutional amendment that would outlaw any legal recognition of same-sex unions. The ACLU of Georgia argued that the ballot language unconstitutionally violated the single-subject rule which requires single votes to decide single issues. Instead, the Georgia constitutional amendment asked voters to decide four issues: (1) marriage access; (2) availability and recognition of civil unions; (3) court jurisdiction, and (4) full faith and credit issues with one single vote. We also alleged that this language was affirmatively misleading as the ballot excised more than 100 words and any mention of civil unions. This was a blatant attempt to influence the results.

The trial court relied on a 1920's case and found that the lawsuit was premature and that in order to bring the challenge, the vote would have to occur first.

The Georgia Supreme Court granted our request for an expedited review and heard arguments on October 19, 2004. The Supreme Court also considered amicus briefs, such as the amicus curiae brief filed on behalf of 52 Georgia law professors that was drafted and organized by Scott Titshaw at Arnall, Golden & Gregory. In the end, the Georgia Supreme Court also ruled that the lawsuit was premature.

The day after the vote was certified, we re-filed the case and oral arguments were heard in January of 2005. On May 16, 2005, Judge Russell ruled that the Georgia Constitutional amendment that denied legal recognition to same-sex couples did indeed violate the single-subject rule because it forced Georgia voters to vote on two separate legal questions (same-sex marriage and other legal protections for same-sex couples) in one instance.

Unfortunately, the Georgia Supreme Court reversed Judge Russell’s decision in a unanimous decision. The Georgia Supreme Court stated that banning same-sex marriages and banning same-sex unions that provide the benefits of marriage were not so disconnected as to violate the single subject rule.

Supreme Court of Georgia Decision
O'Kelley v. Cox Supreme Court of Georgia Decision

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