By Michael Davis
ATLANTA A Fulton County judge delayed a decision until next week on whether a constitutional amendment banning gay marriage in Georgia could stay on the Nov. 2 ballot.
Fulton County Superior Court Judge Constance Russell heard arguments from both sides Friday, but referred the Attorney General's Office and plaintiffs, including lawyers from the American Civil Liberties Union of Georgia, to a Georgia Supreme Court case that casts doubt on whether the court could intervene until after the election.
"I did some looking on my own and neither one of you cited (the case) and frankly I'm concerned," Russell said.
Reading from the case decided in 1920, she said, "judicial power will not be exercised to stay the course of legislation while it is in the process" of being enacted.
She gave both sides until Monday to convince her why she does or does not have jurisdiction in the case.
On Sept. 16, the ACLU and Lambda Legal filed a suit to either stop the gay marriage question from going on the ballot or stop the secretary of state from counting and certifying the results of the election.
John Stephenson, an attorney arguing for the plaintiffs, said that the language that will appear in the Constitution if the amendment is passed is not accurately represented in the question posed on the ballot. He said that, in fact, the amendment addresses four different questions while only one is reflected in the question on the ballot.
Citing the state "single subject" law that limits the number of issues that can be decided by one vote, he said section B of the amendment takes away jurisdiction from state courts in matters arising from civil unions recognized in other states. Section A, he said, only defines marriage as being between a man and a woman.
"It says ?we're not going to recognize rights given to one party or another in connection with a union and that has nothing to do with the definition of marriage," he said.
The Attorney General's Office said that the language written on the ballot only has to identify the question voters are to decide.
"If people need to go see the full amendment they would be voting on, they can go see it," said the state's attorney, Stefan Ritter. "It's not their right to come and say ?we would like it written a different way.'"
Earlier this week, the judge denied a motion to intervene in the case by state Sen. Mike Crotts, R-Conyers, who sponsored the bill, and others. The judge found that while the plaintiff's side included some state legislators, the state's side was adequately represented by the office of Secretary of State Cathy Cox and Attorney General Thurbert Baker.
After the hearing, Crotts, as on other occasions, accused the ACLU of trying to accomplish through the courts, "what they could not do in the legislative process."
"My personal feeling is they are just trying to muddy the water here at the last hour as they have done in other states," he said.
Indeed, Ritter questioned why the plaintiffs waited more than five months to raise the issue. The Georgia General Assembly approved the amendment by a two-thirds majority in March.
Ritter cited election laws that state a challenge can be brought up to five days after an election.
"There's no reason why their case has to be pressed today," he said. "The reality is, since the voters haven't voted, how can they assume they're going to have an adverse result."
Stephenson argued that for the amendment to appear on the ballot, with the question phrased as is, would constitute "a perfect storm of electoral unconstitutionality."
"The vote is unconstitutional whether we like the result or don't like the result," he said.
Stephenson added that forcing voters to choose on more than one issue with only one vote amounts to a "Hobson's choice" and is "no more than coercion."
The vote, he said, could be "used by one side or the other to talk about the ?will of the voters.'"
Georgia is one of as many as 11 states due to vote on a gay marriage ban on Election Day. Louisiana and Missouri approved bans earlier this year by heavy majorities, and four other states already have similar amendments.
The Associated Press contributed to this article.