Georgia lawmakers warn U.S. Supreme Court could put same-sex marriage rights in peril

By: - August 22, 2022 6:05 pm

From left, Rep. Sam Park, Rep. Karla Drenner and Sen. Kim Jackson speak about LGBTQ issues in the Georgia Capitol. Ross Williams/Georgia Recorder

When Sen. Kim Jackson’s wife became seriously ill, the Georgia state senator wanted to be by her side at the hospital, but she found out that would not be so easy.

“When the doctors came out to talk to me, they instructed me that I needed to call her next of kin, and I was not the next of kin, according to the state of Georgia,” the Stone Mountain Democrat said. “And so her brother who was, at the time, 21 years old, was the one who was called in.”

Jackson is Georgia’s first and only openly LGBTQ state senator. She and her wife wed before the 2015 Obergefell v. Hodges U.S. Supreme Court decision compelled all 50 states to recognize same-sex marriages.

According to U.S. Census data, there are about 17,514 same-sex married households in Georgia split nearly equally between men and women.

Today, they enjoy the same legal rights as spouses living in the approximately 1.8 million opposite-sex married Georgia households, but Jackson and other Georgia LGBTQ leaders said Monday they are worried those rights could be rolled back.

“That kind of security that we received, by way of having your marriage recognized in terms of being able to be at the bedside of your loved one at critical times, the financial benefits that come with marriage in terms of filing jointly with your taxes, none of those things were afforded to us during that timeframe when Georgia did not recognize same-sex marriages,” Jackson said.

Their fear flows largely from the pen of Supreme Court Justice Clarence Thomas. While the majority opinion in June’s Supreme Court decision eliminating the right to an abortion states that it is not intended to cast doubts on rights not spelled out in the U.S. Constitution, Thomas disagreed, writing in a dissent that the high court should revisit other cases, including the right to contraception and same-sex marriage.

The U.S. House passed bipartisan legislation in July to enshrine the right to same-sex and interracial marriages in federal law, but the bill’s path forward in the Senate is unclear.

No case directly challenging Obergefell is on the calendar at the moment, but Lawrenceville Democratic state Rep. Sam Park said the right to same-sex marriage would disappear if the case were overturned. Park is the first openly gay man elected to the Georgia Legislature.

“The same-sex marriage ban is still on the books, and my understanding is that it would go into effect if the Supreme Court overturns the Obergefell opinion,” he said. “Also note that Georgia is one of five states in the country that does not have comprehensive civil rights protections in which discrimination is permitted in employment, housing and other accommodations. So we still have a long ways to go to ensure the rights and protections for LGBTQ community, but now we’re kind of playing defense.”

Georgia’s constitution spells out that the state only recognizes marriages between a man and a woman, including those that were performed in another state.

“In the state Senate, (now-Gov. Brian) Kemp voted for a constitutional amendment that would treat myself and hundreds of thousands of LGBTQ Georgians as second-class citizens and ban same-sex marriage,” Park said.

Kemp has said that he believes marriage should be between a man and a woman, and his office Monday said that the governor’s position has not changed, but stressed that Dobbs’ majority opinion states that Obergefell is settled and that Thomas’ dissent does not constitute an indication of where the court is heading.

Jackson said she’s not confident Republicans will be content to stay out of the issue.

“Brian Kemp has been clear that it is his personal belief that marriage should be between a man and a woman, and I think he says personal so that maybe (people think) it will not become a law, but what we know is that when Brian Kemp has personal beliefs, he imposes those into law,” she said. “It is his personal belief that abortion should not be accessible to those who can become pregnant, therefore, we have a ban here in Georgia.”

Kemp’s Democratic challenger, Stacey Abrams, pledged to “codify marriage equality into our state’s laws.”

Overturning the state’s constitutional ban on same-sex marriage would require more than a governor’s signature, however. Changing the constitution requires two-thirds support from both state legislative chambers and then a majority vote from registered voters.

Back in 2004, more than three quarters of Georgia voters said yes to the constitutional amendment banning same-sex marriage, but polling suggests Georgians have had a change of heart, with a 2021 Public Religion Research Institute survey finding 60% of Georgians support same-sex marriage, compared with 68% nationwide.

A lower hurdle would be to pass a law against discrimination against LGBTQ people from employers or home sellers.

Jackson is not predicting an easy win on that, but she said she has seen some encouraging signs.

“Traditionally, the Senate is a bit more conservative than the House, and there have been conversations in the Senate among Senate Republicans about a comprehensive anti-discrimination bill,” she said. “I think that as long as our nation remains extraordinarily polarized, it is politically risky for such a bill to come through, but in the same way that there have been quiet rumblings about Medicaid expansion among Republicans, there have been serious conversations.”

State Rep. Karla Drenner, an Avondale Estates Democrat and the state’s first openly gay representative, was first elected in 2000. She said she’s seen and fought against numerous anti-gay pieces of legislation since then and understands how advocates might be demoralized, but she urged them to fight on.

“It’s important for the members of the LGBTQ+ community that’s listening, that we must continue to believe that equality is our right, that justice is for us, as well as those who were denied that, and that freedom is more important than giving up and being temporarily relieved of the burden of the struggle,” she said. “The Supreme Court did not settle the issue of same-sex marriage. The Supreme Court cannot settle the issue of acceptance in our society today. What settles the issue of acceptance in my mind is that every gay person in Georgia needs to come out and vote, vote for the one person that we know would not roll back marriage equality, that does not make us feel like we’re not part of Georgia.”

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Ross Williams
Ross Williams

Before joining the Georgia Recorder, Ross Williams covered local and state government for the Marietta Daily Journal.Williams' reporting took him from City Hall to homeless camps, from the offices of business executives to the living rooms of grieving parents. His work earned recognition from the Georgia Associated Press Media Editors and the Georgia Press Association, including beat reporting, business writing and non-deadline reporting. A native of Cobb County, Williams holds a bachelor’s degree in English from Atlanta's Oglethorpe University and a master’s in journalism from Northwestern University.