Attack Update: May 17, 2006

The attack: “Today’s ruling [in O’Kelley v. Perdue] demonstrates once again that marriage is threatened by activist judges who refused to recognize the established right of the voters and legislatures to protect marriage. We now look to the Georgia Supreme Court to reverse this baseless ruling and affirm its respect for the institution of marriage and the super majority support the people in Georgia have shown for protecting marriage. Hopefully, Georgia’s high court will follow the example of Louisiana’s Supreme Court, which last year unanimously overturned a ruling by another activist court striking down that state’s marriage amendment. On June 5, the U.S. Senate will have an opportunity to protect the democratic process when it takes up the Marriage Protection Amendment. An amendment to the U.S. Constitution is the only way to reign [sic] in activist judges who are determined to redefine marriage and mute the voice of the people. I urge Congress to send the Marriage Protection Amendment to the states for ratification so that the American people can cheek the power and ambition of these activist judges.”
— Family Research Council President Tony Perkins, commenting on a decision by the Superior Court of Fulton County, Ga. The court ruled that a constitutional amendment recognizing only marriages between a man and a woman, and prohibiting any other form of relationship recognition or benefits, was invalid because it violated Georgia’s “single subject rule,” which requires that constitutional amendments address a single subject only. The amendment in question had two sections, one defining marriage and one prohibiting any other form of relationship recognition or benefits. Georgia Gov. Sonny Perdue launched a similar attack on the court’s decision, saying he was “very disappointed by this decision to countermand the people of Georgia’s voice in defining marriage in our state as a union between a man and a woman. This decision highlights the effect activist judges can have on our system of governance.”

Significance : Perkins’ attack, which uses the familiar, but empty, “activist judge” slogan, is incredibly disingenuous. The court in O’Kelley made a procedural ruling and did not rule on the merits of marriage equality, or “redefine” marriage in any way. The ruling did not decide whether Georgians may ban marriage by same-sex couples, civil unions or any form of recognition or benefit — only that the state must decide such questions one at a time. It made clear that “the people of Georgia are free to decide by constitutional amendment that in this state only the union of man and woman is a valid form of marriage.” The problem here was that the amendment was clumsily drafted and improperly presented voters with multiple subjects in one amendment (the definition of marriage as well as the question of non-marital forms of relationship recognition and benefits). This was not an “activist” decision. It was a decision by a judge enforcing a clear rule contained in the Georgia Constitution for more than 125 years. If the court had refused to enforce the single subject rule, it would have failed in its duty to enforce the state constitution (and, in Perkins words, would have “mute[d] the voice” of Georgians who placed that rule in the constitution).

Perkins’ (and Perdue’s) sloppy criticism is a striking example of the way in which critics of the courts use the meaningless label “activist judges” simply to condemn court decisions with which they disagree.