Georgia Appellate Court Affirms Marriage 
and Upholds State DOMA

— January 25, 2002

The Georgia Court of Appeals has refused to recognize a Vermont civil union as a “legal marriage.” As reported in the October 12, 2001 Update, a divorced mother was seeking to have her Vermont civil union recognized as a marriage for purposes of a child visitation agreement from her previous marriage. After contracting her Vermont civil union, the mother had visitation with the children in her home at the same time her lesbian partner was spending the night, in violation of the visitation agreement the mother had with her former husband. The agreement prohibited both the mother and father from having visitation with the children while either were cohabiting overnight with someone they to whom they were not “legally married” or closely related.

The Georgia appellate court unanimously affirmed the lower court’s decision which refused to recognize the same-sex relationship as a “legal marriage” and held the mother in contempt of the visitation order. The court noted that the Vermont civil union was not a marriage in Vermont, and that even if the two women had entered a same-sex “marriage” recognized elsewhere, it would not be legally valid in Georgia because of the state’s marriage recognition law (Defense of Marriage Act) and the federal Defense of Marriage Act. The court noted that the definition of marriage is an issue left for the legislature to decide, not the judiciary. The mother’s right to privacy claim was also rejected because she had waived this right when she agreed to the visitation agreement with her former husband. This is the first appellate decision in the nation to deal with a state defense of marriage act (DOMA) and establishes pro-marriage precedent as these laws may be challenged in the future.

Source: Burns v. Burns, A01A1827 (Ga. Ct. App. 2d Div. 2002).