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Gay marriage litigation continues to occur in several states. In the first half of 2006, state courts in Washington, New York, and Georgia, and the U.S. Court of Appeals for the 8th Circuit decided controversial gay marriage related cases. This article, the second in a series, will update, overview and summarize those cases.

I. Washington - Andersen v. King County

In 1998, Washington state adopted its Defense of Marriage Act (“DOMA”), which amended Revised Code of Washington (“RCW”) 26.04.010 to read “Marriage is a civil contract between a male and a female who have each attained the age of eighteen years, and who are otherwise capable;” RCW 26.04.020(1)(c) prohibits marriage “when the parties are persons other than a male and a female;” and RCW 26.04.020(3) “[a] marriage between two persons that is recognized as valid in another jurisdiction is valid in this state only if the marriage is not prohibited or made unlawful under subsection (1)(a), (1)(c), or (2) of this section.”

In 2004, same-sex couples from various cities in Washington sued after being denied marriage licenses. The plaintiffs claimed that the Washington State Defense of Marriage Act of 1998 was unconstitutional under the Washington State Constitution on the following grounds: equal protection, the equal rights amendment, that marriage is a fundamental right, and the privileges and immunities clause. On July 26, 2006, the Supreme Court of the State of Washington issued its ruling declaring no constitutional right to same-sex marriage. Andersen is particularly interesting because, unlike the other gay marriage cases, its plaintiffs argued a privileges and immunities violation.

            The court was fractured, with six opinions from nine justices. Justice Barbara Madsen wrote the lead opinion, with Chief Justice Gerry Alexander and Justice Charles Johnson joining. “Here,” Justice Madsen wrote, “the solid body of constitutional law disfavors the conclusion that there is a right to marry a person of the same sex.” While she seemed sympathetic to the same-sex marriage cause, she indicated that the place of recourse for same-sex marriage advocates was through the political process, writing “[w]hile samesex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it … [w]e see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.” Chief Justice Alexander’s concurring opinion stated that the state legislature and the people of Washington have the right to “broaden the marriage act or provide other forms of civil union if that is their will.”

            Justice Madsen’s opinion emphasized the separation of a judge’s personal view from the law, writing “[i]t is important to note that the court’s role is limited to determining the constitutionality of DOMA and that our decision is not based on an independent determination of what we believe the law should be … As Justice Stevens explained, a judge’s understanding of the law is a separate and distinct matter from his or her personal views about sound policy. . . Personal views must not interfere with the judge’s responsibility to decide cases as a judge and not as a legislator.”

            Justice Madsen revealed her personal viewpoint outside the court. “I did what I could do to make [the opinion] straightforward and clear,” Justice Madsen said in an interview. “Obviously, from a personal point of view I might have liked a different outcome.”1

Standard of Review

            The court held that the rational basis standard of review was proper because the plaintiffs failed to show that they are members of a suspect class or that they have a fundamental right to “marriage that includes the right to marry a person of the same sex.” The court found that the State had a rational basis to “promote and encourage stable families.” The court stated that the legislature was entitled to believe that letting only opposite-sex couples marry would “encourage procreation and child-rearing in a ‘traditional’ nuclear family where children tend to thrive.” Justice Johnson stated in his concurrence that it “was reasonable for the Washington Legislature to conclude that the biological nature of one man one woman as a reproductive unit provides an objective and non-arbitrary basis for defining marriage.” The court reiterated several times that “the rational basis standard is a highly deferential standard.”

Privileges and Immunities

Article I, § 12 of the Washington Constitution contains the privileges and immunities clause, which reads: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” The court held that the trial court erroneously applied an independent constitutional analysis when deciding whether DOMA violates the privileges and immunities clause because DOMA did not involve a grant of positive favoritism to minorities. Thus, the court stated that the privileges and immunities clause provides the same protection—and should be applied using the same analysis—as the equal protection clause. The court stated that the privileges and immunities clause “has been historically viewed as securing equality of treatment by prohibiting undue favor, while the equal protection clause has been viewed as securing equality of treatment by prohibiting hostile discrimination.” The court held that DOMA does not involve the grant of a privilege or immunity to a favored minority class. Thus, the court stated that the appropriate question is whether the plaintiffs were discriminated against as members of a minority class, which requires an equal protection analysis.

Equal Protection

The court determined that the plaintiffs were not members of a suspect class, citing High Tech Gays v. Def. Indus. Sec. Clearance Office,2 and Flores v. Morgan Hill Unified Sch. Dist..3 The court acknowledged that gays and lesbians have suffered a history of discrimination. The court held, however, that homosexuality is not immutable: “[t]he plaintiffs do not cite other authority or any secondary authority or studies in support of the conclusion that homosexuality is an immutable characteristic. They focus instead on the lack of any relation between homosexuality and ability to perform or contribute to society. But plaintiffs must make a showing of immutability, and they have not done so in this case.” In footnote 6, however, Justice Madsen wrote that “[w]e recognize that this question is being researched and debated across the country, and we offer no opinion as to whether such a showing may be made at some later time,” perhaps leaving the door open to future litigation depending on scientific findings of immutability. The court also found that gays and lesbians have asserted political power by getting several statute and municipal codes to provide economic benefit. Thus, because the plaintiffs were not members of a suspect class, the court analyzed DOMA under the rational basis review standard.

Fundamental Right

The court held that the plaintiffs did not have a fundamental right to same-sex marriage, primarily because, among other things, same-sex marriage is not deeply rooted in Washington or American history. The court also noted that nearly all of the United States Supreme Court decisions which declare marriage to be a fundamental right expressly link marriage to the fundamental rights of procreation, childbirth, and child-rearing. Justice Madsen wrote, however, that “history and tradition are not static,” to which Justice Johnson (concurring) wrote that state and national history were real and ascertainable. Justice Madsen noted that no appellate court has ever found a fundamental right to gay marriage.

The court recognized the many advantages that married couples have over non-married ones. The plaintiffs, however, affirmatively requested that the court not consider whether denial of statutory rights and obligations to same-sex couples, aside from the status of marriage, violates the state or federal constitution. The court went on to state that DOMA’s limiting the right to marry to opposite-sex couples furthers governmental interests in procreating and raising children, biologically related to a mother and a father, in a stable, healthy environment. The court noted that DOMA was not motivated by animus. For example, fifteen legislators who voted for DOMA also voted to add sexual orientation laws against discrimination. The court further noted that under a rational basis review, even if animus partially motivated legislative decision making, “unconstitutionality does not follow if the law is otherwise rationally related to legitimate state interests.”

Due Process and Privacy

            The plaintiffs argued that DOMA violated the right of personal autonomy protected by the due process and privacy clauses of Washington’s Constitution, which read, respectively, “[n]o person shall be deprived of life, liberty, or property, without due process of law,” Article I, § 3, and “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law,” Article I, § 7.

The court rejected these claims, stating that there is no fundamental right to same-sex marriage in Washington, and no history of marriage that includes same-sex marriage. Thus, “the citizens of Washington have not held a privacy interest in marriage that includes a right to marry a person of the same sex.” Justice Madsen used an interesting phrase, however: “There is evidence that times are changing, but we cannot conclude at this time the people of Washington are entitled to hold an expectation that they may marry a person of the same sex.”

Equal Rights Amendment

            The Equal Rights Amendment (“ERA”), Article 31, § 1 of the Washington Constitution, states “Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.”

The court, as did the trial courts, rejected the plaintiffs’ argument that DOMA violated the ERA. The court reasoned that men and women are treated identically under DOMA; neither may marry a person of the same sex. The court stated that DOMA does not, therefore, classify nor discriminate on the basis of sex. Interestingly, the court noted that the ERA’s legislative history clearly indicates that it was not intended to promote or grant same-sex marriage. The court distinguished Loving v. Virginia,4 which struck down anti-miscegenation statutes, from same-sex marriage, because DOMA did not discriminate on the basis of sex, whereas the Virginia statute did.

Finally, Justice Madsen appeared to be pleading directly to the legislature when she wrote, “given the clear hardship faced by same-sex couples evidenced in this lawsuit, the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.”

Dissent

Justice Fairhurt’s dissent centered around two key beliefs: (1) that allowing same-sex couples the right to marry in no way harms the state’s legitimate interests, and (2) that the right to marry the person of one’s choice is a fundamental right.

Justice Bridge’s dissent centers around two key beliefs: (1) gays and lesbians have traditionally suffered discrimination, and (2) the court has a duty to protect constitutional rights.

Justice Chamber’s dissent centered around the belief that the privilege of marriage is not available to all citizens on equal terms in violation of Washington’s privilege and immunities clause.

II. New York: Hernandez v. Robles

On July 6, 2006 the New York Court of Appeals, New York’s highest court, held that “the New York Constitution does not compel recognition of marriage between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.” Judge Robert S. Smith wrote for a 4-2 majority, with Chief Judge Judith S. Kaye dissenting. Judge Victoria A. Graffeo wrote a separate concurrence. Judge Albert M. Rosenblatt took no part.

Hernandez v. Robles is a consolidation of four different cases involving forty-four same-sex couples who unsuccessfully tried to obtain marriage licenses in New York and then sued, seeking declaratory judgments that the restriction of marriage to oppositesex couples was invalid under the New York Constitution. In each individual case, the Appellate Division, New York’s intermediate appellate court, found no constitutional right to same-sex marriage.

The court stated that all the parties acknowledge that New York’s Domestic Relations Law (“DRL”) limits marriage to opposite-sex couples, and stated that certain amici’ssuggestion that the statute could be read to permit same-sex marriage was “untenable.”

The plaintiffs-appellants claimed that the DRL violates the New York Constitution’s Due Process Clause (Article I, § 6, which reads: “No person shall be deprived of life, liberty or property without due process of law”) and Equal Protection Clause (Article I, § 11, which reads: “No person shall be denied the equal protection of the laws of this State or any subdivision thereof”).

The court analyzed these claims under the rational basis standard of review. The court emphasized that it was not analyzing “whether the Legislature must or should continue to limit marriage [to opposite-sex couples]; of course the Legislature may … extend marriage or some or all of its benefits to same-sex couples.”

The court identified two key grounds which rationally support limiting marriage to opposite-sex couples: (1) for the welfare of children, promoting stability, and avoiding instability in opposite-sex, i.e., relationships that cause children to be born, rather than same-sex relationships, which require adoption or technological intervention; and (2) that it is better, other things being equal, for children to grow up with both a mother and a father. The court noted that sociological studies do not establish beyond doubt that children fare equally well in same-sex and opposite households, and stated that, in the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father.

Due Process

The court took great pains to distinguish gay marriage from the anti-miscegenation laws that Loving v. Virginia5 declared unconstitutional. The court found that the fundamental right to marry does not encompass the right to same-sex marriage. The court noted that Hernandez was more similar to Washington v. Glucksberg6 than it was to Lawrence v. Texas.7 The court pointed out that the plaintiffs-appellants did not, as the petitioners in Lawrence did, seek protection against State intrusion on intimate, private activity; rather, the plaintiffs-appellants sought from the courts access to a State-conferred benefit that the Legislature has rationally limited to opposite sex couples. In her concurrence, Judge Graffeo rejected the plaintiffs’ substantive due process argument claims that the “right to privacy derived therein grants each individual the unqualified right to select and marry the person of his or her choice.” Judge Graffeo also noted that, unlike Lawrence, the DRL “is not a penal provision and New York has not attempted to regulate plaintiffs’ private sexual conduct or disturb the sanctity of their homes. And, in contrast to the Texas statute, New York’s marriage laws are part of a longstanding tradition with roots dating back long before the adoption of [New York’s] State Constitution.” The court stated that because there were no fundamental rights at issue, it would review the DRL under the rational basis standard, which it passed.

Equal Protection

The plaintiffs argued that the DRL discriminated on the basis of gender, which requires analysis under a heightened intermediate scrutiny, and on the basis of sexual orientation, which the plaintiffs claimed also requires analysis under a heightened intermediate scrutiny. The court held that the DRL did not put men and women in different classes, and did not give one class a benefit not given to the other. The court held that both women and men are permitted to marry people of the opposite sex, but not people of their own sex. Judge Graffeo noted that any person, regardless of sexual orientation, could marry another person of the opposite sex. She also noted that the plaintiffs conceded that the DRL was “not enacted with an invidiously discriminatory intent—the Legislature did not craft the marriage laws for the purpose of disadvantaging gays and lesbians.”

The court then found that classifications based on sexual orientation should be reviewed under the rational basis standard. The court stated that “[a] person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State’s interest in fostering relationships that will serve children best.” The court rejected the plaintiffs’ argument that if the relevant State interest is the protection and welfare of children, then the category of those permitted to marry, opposite-sex couples, fails rational basis review because it is both under-inclusive (both same-sex couples and opposite-sex couples may have children), and over-inclusive (many opposite-sex couples cannot or do not want to have children). The court found that while the Legislature “might rationally choose to extend marriage or its benefits to same-sex couples,” it could also “rationally make another choice, based on the different characteristics of opposite-sex and same-sex relationships,” namely that “the Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability [via marriage and its attendant benefits] in opposite-sex relationships will help children more.” The court also found that “limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.”

The court specifically stated that “we emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong … [t]he dissenters assert confidently that ‘future generations’ will agree with their view of this case. We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives.”

Dissent

Chief Judge Kaye dissented on three main points. First, extrapolating from Lawrence, that the fundamental right in question was the right to marry, not the right to same-sex marriage. Second, that the correct question with respect to equal protection is “not whether the marriage statutes properly benefit those they are intended to benefit—any discriminatory classification does that—but whether there exists any legitimate basis for excluding those who are not covered by the law. (emphasis in original)” Third, that the court should not “avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic … the Court’s duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.”

III. Georgia: Perdue v. O’Kelley, et al.

On July 6, 2006 the Georgia Supreme Court unanimously ended a non-substantive challenge to a state constitutional amendment defining marriage only as “the union of man and woman” and prohibiting marriage between persons of the same gender. Justice Robert Benham, who became the first AfricanAmerican to serve on the Georgia Supreme Court when then-Governor Joe Frank Harris appointed him in 1989, wrote for a unanimous court. Justice Harold D. Melton did not participate in the ruling.

On November 2, 2004, the people of the State of Georgia approved, by a 76% majority, a proposed constitutional amendment that became Article 1 Section 4 Part 1 of the Georgia Constitution of 1983. It reads as follows:

Recognition of Marriage

(a) This state shall recognize as marriage only the union of man and woman. Marriage between persons of the same sex are prohibited in this state. (b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such relationship.

Prior to the vote, the plaintiffs had sued in state court, asking the court to enjoin the vote.

The plaintiffs claimed that the proposed amendment would likely violate Georgia’s “Single Subject Rule,” which requires that the text of a proposed ballot measure may not relate to more than one subject and may not have two or more distinct and separate purposes, which are not germane to each other. The Georgia Supreme Court denied injunctive relief in O’Kelley v. Cox,8 noting that the sole question was whether the judiciary could “properly interfere in the constitutional amendment process, and prevent voters from expressing their approval or disapproval of the proposal which their elected representatives, by a two-thirds vote of each house of the General Assembly, have determined should be submitted to them.” Citing Gaskins v. Dorsey,9 the court stated that it could not encroach upon the legislative process and did not have any authority to bar the general election on November 2, 2004 from proceeding exactly as scheduled.

The plaintiffs again sued after the amendment passed, this time seeking a declaration that the amendment was unconstitutional because (1) the ballot language was misleading and (2) the amendment contained multiple sections dealing with more than one subject, thereby violating the requirement in Art. 10 Section 1 Paragraph 2 of the Georgia Constitution of 1983, which reads: “[w]hen more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately, provided that one or more new articles may be submitted as a single amendment.” The plaintiffs argued that the amendment had dual purposes: (1) to limit the definition of marriage as the union of a man and a woman, and (2) to refuse legal benefits and protections to same-sex couples in civil unions.

The trial court rejected the challenge to the ballot language but held that the amendment was unconstitutional, finding that the first sentence of subparagraph (b), “[n]o union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage,” dealt with how same-sex marriages would be treated in Georgia rather than defining marriage as between man and woman.

The Georgia Supreme Court made a point of stating that it was “not presented with any issue regarding the ballot language and we do not, as an appellate court, judge the wisdom of the amendment. ‘With the wisdom or expediency of the amendment this court does not deal. The legislature and the people have passed upon that.’ Hammond v. Clark, 136 Ga. 313, 333 (71 SE 479) (1911).”

The court applied the “Germaneness Test” in analyzing the multiple subject matter issue. “The test of whether an Act or a constitutional amendment violates the multiple subject rule is whether all of the parts of the Act or of the constitutional amendment are germane to the accomplishment of a single objective.”10 Applying the test, the court noted that the appellant contended that the objective is “the nonrecognition of Georgia of same sex conjugal relationship,” and the appellees argued that the objective was to define “marriage as the union between man and woman, reserving that status exclusively to different-sex couples.” The court found that both of those expressions have a commonality of exclusiveness, establishing that marriage and its attendant benefits belong only to unions of man and woman. The court held that that “exclusiveness is the essence of the amendment’s purpose.”

The court then held the sentence “[n]o union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage” to be germane to the objective of reserving marriage and its attendant benefits exclusively to unions of man and woman. Thus, the court held that Georgia’s marriage amendment was constitutional because the first sentence of subparagraph (b) of the amendment did not address a different objective than that of the amendment as a whole and did not render the amendment in violation of the multiple-subject prohibition of Art. 10 Section 1 Paragraph 2 of the Georgia Constitution of 1983.

IV. U.S. Court of Appeals for the 8th Circuit (Nebraska): Citizens for Equal Protection, et al. v. Bruning

On July 14, 2006, the U.S. Court of Appeals for the Eighth Circuit held that a Nebraska constitutional amendment codified as Article I, § 29 of the Nebraska Constitution did not offend the Equal Protection Clause, the Bill of Attainder Clause, nor the First Amendment of the U.S. Constitution. Chief Judge James Loken wrote for a unanimous court.

Section 29, entitled “Marriage; same-sex relationships not valid or recognized,” reads as follows: “Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.” Nebraska’s amendment went farther than similar bans in other states by barring same-sex couples several legal protections afforded heterosexual couples, such as the ability to share health insurance.

Equal Protection

The plaintiff-appellees, relying on Romer v. Evans,11 argued that § 29 violated the equal protection clause by raising “an insurmountable political barrier to same-sex couples obtaining the many governmental and private sector benefits that are based upon a legally valid marriage relationship.” They did not assert a right to gay marriage or same-sex unions. Rather, they claimed that because § 29 was a state constitutional amendment, rather than state-wide legislation restricting marriage to a man and a woman, it deprived gays and lesbians of “equal footing in the political arena.”

Like the other courts discussed in this article, the Eighth Circuit made particular note to distinguish the legal ruling from any personal viewpoint. “Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification ‘lacks a rational relationship to legitimate state interests,’ (citing Romer, 517 U.S. at 672).”

The Eighth Circuit determined that § 29 should be analyzed under the rational basis review standard. The court noted that Romer used rational basis review to analyze the Colorado amendment. The court further noted that a state “has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved ... [t]his necessarily includes the power to classify those persons who may validly marry.” The court found that the Colorado enactment in Romer was distinguishable from § 29 because the Colorado enactment repealed all existing and barred all future preferential politics based on orientation, conduct, practices or relationships. Contrastingly, the court found that § 29 limits the class of people who may validly enter into marriage and the legal equivalents to marriage such as civil unions and domestic partnerships. Thus, the court held, § 29 was not so broad as to render Nebraska’s reasons for its enactment “inexplicable by anything but animus” towards same sex couples.

Bill of Attainder

The Eighth Circuit also found that § 29 was not a bill of attainder, which the U.S. Supreme Court defined as “a law that legislatively determines guilt and inflicts punishment.”12 The court held that a political disadvantage is not punishment for the purposes of bills of attainder. The court further stated § 29 “is not punishment in the functional sense because it serves the non-punitive purpose of steering heterosexual procreation into marriage, a purpose that negates any suspicion that the supporters of § 29 were motivated solely by a desire to punish disadvantaged groups.” Finally, the court noted that despite the plaintiffsappellees arguments, the U.S. Supreme Court stated in Nixon that the Bill of Attainder Clause “was not intended to serve as a variant of the equal protection doctrine.”13

First Amendment

The district court had ruled sua sponte that § 29 violated the plaintiffs-appellees’ First Amendment rights to associational freedom and to petition the government for redress of grievances, “which encompasses the right to participate in the political process, also protected by the First Amendment.” The Eighth Circuit noted that the plaintiffs-appellees did not raise a First Amendment claim in the district court nor on appeal. The Eighth Circuit held that § 29 did not violate the First Amendment because (1) it did not “directly and substantially” interfere with the plaintiffs-appellees’ ability to associate in lawful pursuit of a common goal, and (2) it seemed “exceedingly unlikely” that § 29 would prevent persons from continuing to associate. The court noted that the district court cited no case supporting its “suggestion” that § 29 violated the right to petition the government for redress of grievances. The court stated that while the First Amendment guarantees the right to advocate, it does not guarantee political success. The court further noted that the district court erred by confusing the First Amendment and equal protection analyses and standard of review.

Conclusion

Gay marriage litigation continues to be an active and controversial area of litigation, and future articles in the series will continue to cover them. For example, on October 5, 2006 the intermediate appellate division in California overturned the San Francisco trial court, finding no constitutional right to gay marriage and declaring that “[c]ourts simply do not have the authority to create new rights, especially when doing so involves changing the definition of so fundamental an institution as marriage … judges are not free to rewrite statutes to say what they would like, or what they believe to be better social policy.” The case is almost sure to go to the California Supreme Court. As of this writing only one state, Massachusetts, has found a constitutional right to gay marriage. The cases covered in this article have much in common, but perhaps one of the most striking is the extra effort the majority judges made to insulate themselves personally from the legal rulings.

 

Endnotes

1 David Postman, “Nine Justices, Six Opinions, No Consensus,” SEATTLE TIMES, July 27, 2006 available at http:// seattletimes.nwsource.com.

2 895 F.2d 563 (9th Cir. 1990) (holding that homosexuality is behavioral, and thus not immutable).

3 324 F.3d 1130, 1137 (9th Cir. 2003) (homosexuality not a suspect class).

4 338 U.S. 1 (1967).

5 338 U.S. 1 (1967).

6 521 U.S. 702 (1997).

7 539 U.S. 558 (2003).

8 278 Ga. 572, 604 S.E.2d 773 (2004).

9 150 Ga. 638, 104 S.E.433 (1920).

10 Carter v. Burson, 230 Ga. 511, 198 S.E.2d 151 (1973).

11 517 U.S. 620 (1996).

12 Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468.

13 Nixon, 433 U.S. at 471.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].