Abstract: Even though the Windsor decision declares DOMA unconstitutional based on principles of federalism, the majority opinion

discusses how the statute also has an unconstitutional purpose and effect. Amendment One Section IV of the Georgia Constitution has the same unconstitutional purpose and effect as DOMA, which is evidenced in the legislative history and effect of the Amendments enactment. I. The Windsor Decision

The issue presented to the Court was whether the federal government could refuse to recognize a lawful state-created same-sex marriage and not whether banning same-sex marriage is unconstitutional; therefore, the Court based its decision to recognize same-sex marriages on the principles of federalism. Although it rests its decision on the fact that DOMA violated states rights when deciding martial law, the opinion delves further into the constitutional analysis and discusses how DOMAs refusal to recognize same-sex unions could be interpreted as a violation of the fifth and fourteenth amendment. Throughout the opinion, there is underlying language of the dignity and equality that accompanies same-sex marriage which hints at a possibility that the Court may decide, in a future case, that a state ban of same-sex marriage is unconstitutional. Besides DOMA being unconstitutional based on the rights of states to define their own marital law, Kennedy asserts that it is also unconstitutional because it imposes restrictions and disabilities on a class for an improper animus or purpose. He stresses, The Constitutions guarantee of equality must at the very least mean that bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. He found a congressional desire to, impose a disadvantage, a separate status, and so a stigma upon all who enter into same sex marriages made lawful by states through an analysis of both the purpose and practical effect of DOMA. a. The Purpose of DOMA Kennedy concluded that the DOMAs purpose to impose an unconstitutional disadvantage on same-sex marriage using three evidentiary sources: the House Report, the stated purpose of the law, and the title of the act. The House Report explains that Congress motivation for enacting DOMA was to defend the institution of traditional marriage. The Report explains, The effort to redefine marriage to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage. Same-sex marriage was a radical proposal to Congress because it went against traditional morality. The Report holds that Congress has both [a] moral disapproval of homosexual[ity] and a moral conviction that heterosexual [marriage] better comports with traditional (especially Judeo-Christian) morality. This piece of legislative history indicated that Congress wanted to protect heterosexual marriage based on traditional moral teachings and not because of any efficient government purpose.

The Court interprets this report as explaining that DOMAs stated purpose was to unnecessarily restrict the freedoms of same-sex couples. Kennedy explains that DOMA was an attempt to, discourage enactment of state same-sex marriage laws and restrict the freedom and choice of couples married under those laws. He finds the title of DOMAThe Defense of Marriage Actas further evidence of blatant discrimination against a specific status of people. It is important to note that Justice Roberts in his dissent disagrees with the way this legislative history is used. To Roberts, it is hardly surprising that the Federal government treated the issue of same-sex marriage differently than other sanctions on marriage and so it is hardly enough to say that the purpose of DOMA was a bare desire to harm. He disagreed with the use of the House Report and the banal title of the act as evidence of an unconstitutional purpose because it was not enough evidence to show that the enactment of DOMA was to codify malice and that it furthered no legitimate government interests. b. The Practical Effect of DOMA Besides finding the purpose of DOMA was unconstitutional, Kennedy asserts that the practical effect of the statute is purely discriminatory for three reasons: it demeans the couple by placing them in a lower status than that of a heterosexual couple, it has damaging psychological effects on the couple, their families, and the community, and it causes undue hardships and burdens that cannot be justified by a legitimate governmental purpose. First, DOMA demeans same-sex couples because it undermines both the public and private significance of state-created marriage. The Court explains, It tells these couples and all the world that their otherwise valid marriages are unworthy of federal recognition. The ultimate effect of DOMA is to place same-sex couples in a lower status than heterosexual couples, which the Court refers to as a second-tier marriage which ignores the fact that the Constitution protects a same-sex couples right to their own moral and sexual choices. Second, the psychological effects of refusing to recognize a same-sex marriage are vast and affect the couple, their children, and the citizens of the state that came to the consensus to allow their marriage. The court says that DOMA humiliates tens of thousands of children now being raised by same-sex couples by mak[ing] it even more difficult for them to understand the integrity and closeness of their own family and its concord with other families on their community and their daily lives. The humiliation caused by deeming a same-sex marriage as a second-tier marriage is entirely visible to the public and only furthers a discrimination. Lastly, the financial and practical burdens created by DOMA extend to the many aspects of married and family life in areas like taxation, healthcare, and Social Security benefits. DOMA puts restrictions and hardships on lawful marriages when the purpose of federal law should be to promote the rights and responsibilities of its citizens and their valid unionsrights and responsibilities in which same-sex couples would undoubtedly embrace. Ultimately, there is no legitimate purpose that could overcome the purpose and effect to disparage and injure those whom the state sought to protect in personhood and dignity. Because DOMA lacks an appropriate purpose, it violates the Fifth Amendment, the amendment

that the Court says withdraws from the government the power to degrade and demean in the way that DOMA does. The Fourteenth Amendment also strengthens this argument because it makes that Fifth Amendment right all the more specific and all the better understood. II. Windsor and the Future of Same-sex Marriage

The opinion of the Court seems to endorse same-sex marriage by claiming that states that have chosen to recognize same-sex marriage gave dignity and status to these unions which ultimately advances equality. Throughout the opinion, the Court seems to invalidate the distinction between same-sex and heterosexual marriages by defining marriage in terms of affirming commitment to one another before families, friends, and communities to live in pride in themselves and their union and in a status of equality. This language leads Justice Roberts, legal scholars and the like to question what the future holds for same-sex marriage. The power to define marital status is confined to the states, which was of central relevance to the majoritys decision to strike down DOMA; therefore, Justice Roberts says it was unnecessary for the majority to tar with the political branches of dignity. In the future, the Court may resolve challenges to state sanctions on marriage, but Windsor is not such a challenge. However, Roberts claims the power of the federal government to promote dignity and equality will come into play on the other side of the board in future cases about the Constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMAs Constitutionality. III. Amendment One of the Georgia Constitution

Section 9-3-3.1 of the Georgia Code expressly bans same-sex marriage and was enacted in 1996 with almost no opposition. Since its enactment, the Georgia Courts have never heard a challenge to it. However, the political debate surrounding same-sex marriage in 2004 sparked fear in the Georgia General assembly that 9-3-3.1 would be overturned. This led Senator Mike Crotts of the 17th District to introduce an amendment to the Georgia Constitution that would define heterosexual marriage as the only valid marriage in the state of Georgia which titled SR 595a bill that was also being considered by twenty other states in the nation during that year. SR 595 forbids state recognition and benefits of marriage to same-sex couples. The amendment goes further by refusing to recognize any same-sex marriage that was granted outside of Georgias jurisdiction. It also withdrew jurisdiction from a Georgia court to rule on any respective rights that arose as a result of or in connection with [a same-sex marriage] relationship. After passing both the House and the Senate without any amendments, it was placed on the November 2004 ballot. The ballot stated, Shall the Constitution be amended so as to provide that this state shall recognize as marriage only the union of a man and a woman? The referendum was approved by 76% of the voters, one of the largest margins of passage in the nation. Both the purpose and practical effect of Amendment One correlate so similarly with the DOMAs purpose and effect that the Supreme Court declared unconstitutional. Amendment One

violates the Fifth Amendment for three reasons: (a) it protects moral teachings while violating the freedom and choice of couples; (b) it serves no legitimate purpose other than to demean same-sex couples by restricting rights and responsibilities; and (c) it does not reflect the voice of Georgias citizens because the amendment goes beyond limiting the definition of marriage by mandating that marital benefits can only be provided to heterosexual unions. a. Purpose: Moral Disapproval into Law In Windsor, the Court found evidence of a bare congressional desire to harm a politically unpopular group in the legislative history of DOMA. The Court reached this conclusion through three means: (1) looking at the House Report, which defined the motivation for refusing to recognize same-sex marriage because same-sex marriage redefines traditional marriage and would fundamentally alter the institution of marriage (2) concluding from the House Report that the stated purpose of DOMA was to express moral disapproval of homosexuality and to promote heterosexual marriage because it better comported with Congress own morality and (3) the title of the act as the Defense of Marriage Act further promotes discrimination. DOMAs purpose was ultimately unconstitutional because it impose[d] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages. Amendment Ones legislative history is so similar to DOMAs legislative history that it could easily be interpreted as promoting the same traditional and moral purpose; thus, it serves as evidence of the Georgia General Assemblys unconstitutional desire to harm a politically unpopular group. SR 595 arose out of a desire to promote morality because it was enacted out of a concern that Christian morality was being removed from the public sphere after three rulings: (1) the removal of the Ten Commandments from a courthouse in Alabama; (2) a ruling taking prayer out of school; and (3) an attempt to take God out of the pledge of allegiance. Senator Crotts became worried that activist judges would further remove Christian morality from law by overruling the ban of same-sex marriage in the Georgia Code; therefore, in order to promote Judeo-Christian morality like Congress did when enacting DOMA, Crotts enacted SR 595. This can be seen in the House Report, the stated purpose of the law, and the title of the act.

1. The House Report The proponents of SR 595 used the exact same unconstitutional arguments and reasoning as the proponents of DOMA: traditional marriage better comports with the legislatures own morality. According to the house report, proponents argued the following: (1) Marriage is the bedrock of our nationthe true strength of our nation lies in the heart of the traditional family. (2) The vital institution of marriage is in dangerthere is a movement by homosexuals to circumvent the legislative process and just sympathetic judges and officials to

seize the right to marry as evidenced in decisions in Massachusetts, California, and the Supreme Court in Lawrence v. Texas. (3) SR 595 is an essential tool that would allow Georgia to defend the sanctity and tradition of marriages as it has been known for thousands of years. (4) Even though same-sex marriage is already banned, the only way to guarantee that no state court judge could overturn the states ban on same sex marriage would be an amendment because anything less would leave the ban more vulnerable. Even though the House Report lacks an in-depth description of the actual debate on the floor, other reports have on record that legislatures brought Bibles and quoted words of Jesus regarding the sacred lifelong bond between one man and one woman. Proponents of the bill frequently asserted their stance was motived by faith-based conservative values. Further evidence that the purpose of Amendment One was to enforce moral values is in a study done by Andrew Moore at the University of Georgia in 2005. He determined that the passage of the amendment was a textbook example of a morality policy theory of governmental action where a highly salient culture war issue ishandled differently when being debated and acted upon. 1. The Stated Purpose of the Law Because the House Reports motivation for enacting DOMA was based on moral disapproval of homosexuality and the stated purpose of the law was to promote an interest in protecting the traditional moral teachings reflected in heterosexual only marriage laws, the Court in Windsor concluded that DOMA lacked an efficient government purpose and only served as a discriminatory law. Like the legislature in Windsor, the stated purpose by the Georgia legislature was also to promote traditional moral teachings of marriage as evidenced by statements made by both Crotts and the Georgia House Report. Crotts explained his purpose for proposing SR 595 as defend[ing] the sanctity of marriage and to preserve the rights of citizens of Georgia to make laws and set standards for Georgia. Likewise, the House Report states that, 2/3 majority of members felt the ban was necessary to allow Georgians to express their support for the institution as it is now known and has been known throughout history. These statements make it clear that Amendment Ones main purpose was to restrict the rights and responsibilities of a specific class of a politically unpopular group based on traditional moralityevidencing the same bare congressional desire to harm as the legislatures of DOMA. 2. Title of the Amendment- Defense of Marriage Act Amendment One and DOMA share the same titlethe Defense of Marriage Act. Kennedy found the title of DOMA as relevant evidence that the law was unconstitutional. The title of the act confirmed to Kennedy that the purpose of DOMA was to protect traditional

moral teachings by being titled the defense of marriage; thus, the title of Amendment One also confirms such a finding. b. The [Im]practical Effect of Amendment One Windsor expressly states that the Constitution protects a same sex couples moral and sexual choices and DOMA violates these choices by restricting their rights. This restriction creates three specific harms: (1) DOMA demeans same-sex couples; (2) DOMA creates psychological harm to the couple, their children, and the community; and (3) DOMA unduly burdens and financially harms the couple. Because of this restriction DOMA served no legitimate purpose [that could overcome] the purpose and effect to disparage and injure those whom the state sought to protect in personhood and dignity. Because a federal government can only grant benefits and rights to same-sex couples whose marriages are valid through state law, a state created ban on same-sex marriage like Amendment One limits the same rights as DOMA. This creates the same harms in Windsor that the Court found disparaged and injured the specific class of people that no legitimate purpose could overcome. Even some members of the Georgia General Assembly saw the amendment as an arbitrary and prejudicial law that lacks a legitimate purpose. During the 2004 debates, Representative Ron Sailor Jr. told the press, Im a pastor and I dont support gay marriage, but I resent people playing political football with our religious beliefs. Representative Karla Drenner, Georgias first openly gay lawmaker, was in the House during the enactment and she equated the amendment to legalized discrimination based on a hypothetical court case. Representative Georganna Sinkfield spoke directly to the arbitrariness of Amendment One by claiming, Im a Christian, but if we but this into our Constitution, whats next? People with dark hair? Youre opening the floodgates for people to promote their own prejudice. c. Combating the Federalism Argument: Amendment One the Voice of the People? In Windsor, the Court left the decision of same-sex marriage up to the states because state law is considered the voice of the people. In his dissent, Justice Scalia believed that the majoritys language of dignity and equality associated with same-sex marriage diminished this power of people to govern themselves. While there was immense public support for Amendment One during its enactment in 2004, many have argued that Georgians were unaware that Amendment One actually went beyond defining marriage as a union between a man and a woman; therefore, it is possible that the amendment does not adequately represent the voice of Georgia citizens. This issue was brought to the Supreme Court of Georgia in the case Perdue v. OKelley and the notion was ultimately struck down because the language on the November 2004 ballot was not so dissimilar or discordant to the governments stated objective of reserving marriage and its benefits exclusively to the unions of a man and a woman. However, the arguments in the

case and the analysis of the Superior Court of Georgia bring to light important constitutional issues about Amendment One. OKelley, represented by Lambda Legal, argued that Amendment One actually accomplishes four different objectives. These objectives are: (1) excluding same-sex couples from marriage; (2) prohibiting recognition and benefits of legal unions between persons of the same sex; (3) barring the courts from recognizing judgments, acts, and records from other states and jurisdictions regarding same-sex unions; and (4) divesting the courts of jurisdictions to rule on rights arising out of same-sex relations. A constitutional issue arises in the second issue where it prohibits same-sex unions from receiving the benefits of marriage. The government conceded to the Superior Court that this language could be interpreted to prohibit civil unions and domestic partnerships in the future, but claimed the amendment does not expressly prohibit these unions because the term union in Amendment One is synonymous with marriage. The Superior Court was not persuaded by this argument because Amendment One could have contained the exact same language as Section193-3.1 which said no marriage between persons of the same-sex shall be recognized as entitled to the benefits of marriage, but instead the legislature changed Amendment One to saying no unions between persons of the same-sex shall be recognized as entitled to the benefits of marriage. This provision could potentially reflect the state going beyond its power to define martial law and, instead, discriminatorily refusing to grant rights and responsibilities to same-sex couples in any union. This only furthers the conclusion that Amendment One harms and demeans same-sex couples based on morality and lacks any legitimate, governmental purpose. Conclusion: Amendment Ones purpose, practical effect, and objectives expressly violate the constitutional principles outlined in the Windsor case as evidenced in Amendment Ones legislative history of the amendment, its effects on the rights of same-sex couples in Georgia, and its prohibition of benefits to any same-sex unions.