Ex-chief justice's opinion on same-sex marriage hard to gauge

The national debate over same-sex marriage has forced most politicians to pick a position. But one well-known figure in Georgia’s legal community says she has avoided taking a stance on the issue for personal and professional reasons.

Former Georgia Supreme Court Chief Justice Leah Ward Sears recently wrote a column in Fulton County’s Daily Report. She praised a group called the Institute for American Values for its recent decision to separate from its past position of opining on same-sex marriage.The mission of the conservative, New York-based organization is to "study and strengthen civil society." Its president, David Blankenhorn, has been a vocal opponent of same-sex marriage, while other board members have been more supportive on the issue. He wrote a book in 2007, "The Future of Marriage," which included his belief that children need a mother and a father. Last year, Blankenhorn described his revised views on same-sex marriage in a New York Times column. Blankenhorn stands by his book, but is now more focused on strengthening the institution of marriage, regardless of the genders involved.

"I'm pleased with the direction the Institute is taking," wrote Sears, who has been a board member of the group for several years. "Unlike David, I was never against same-sex marriage. But much like David, I've witnessed the fallout from broken families in the past several decades, during which divorce and out-of-wedlock births have skyrocketed, and unstable, serial cohabiting relationships have become the norm for raising children."

PolitiFact Georgia wondered if Sears, whose name frequently appears on lists when there is an important judicial opening, has never opposed same-sex marriage.

Sears, a partner at the law firm Schiff Hardin's Atlanta office, was reportedly on the shortlist of candidates for the U.S. Supreme Court a few years back. The Atlanta Journal-Constitution’s Political Insider blog posted an item about Sears’ column and noted that there are three openings on the 11th U.S. Circuit Court of Appeals, which decides cases in Alabama, Florida and Georgia. Sears told PolitiFact Georgia she’s "not vying for anything."

Sears told us that she’s been purposefully careful not to offer a position on same-sex marriage, particularly when she was on the bench.

"By having grown up African-American and female, I wanted to be careful and sensitive to the rights of our gay and lesbian citizens," she said.

In 2009, an Associated Press story noted that Sears was criticized by gay rights groups, such as Georgia Equality, for joining the Institute for American Values, because of Blankenhorn’s publicly stated opposition to same-sex marriage.  

"Anytime someone joins the board of an organization, I think it’s kind of implied that they support the positions of that organization," Georgia Equality Executive Director Jeff Graham told PolitiFact Georgia about his group’s criticism of Sears at the time. Despite their criticism, Graham was not aware of any instance in which Sears had publicly stated her position on the issue.

Sears said her role at the institute would build on her work with the Georgia Supreme Court toward "strengthening the institution of marriage," by working to reduce the nation’s divorce rate. (The AP reporter who reported that story now works for the AJC. PolitiFact Georgia checked with him about the piece, and he assured us his reporting was accurate.)

While she was under consideration for the U.S. Supreme Court, it was noted that Sears had addressed same-sex marriage only indirectly, writing in an opinion that alimony should not be reduced for someone who entered into a homosexual relationship the same way it might be if the person had remarried, because such relationships did not enjoy the same legal protections as marriage.

In a 2008 interview with the AJC, Sears was asked if her attendance at a conference on marriage was an indication that she is against same-sex marriage.

"We will have a one-hour debate on same-sex marriage which I will facilitate, and I have no view," Sears said as part of her answer. "I've included it as a small part of the conference because I didn't want people to think I was afraid of it."

In addition to reviewing Sears’ public statements (or lack of public statements) on the issue, PolitiFact Georgia also reviewed her legal history.

She ruled with the Georgia Supreme Court in throwing out the state’s hate-crimes law in 2004 as "unconstitutionally vague"; reinstating Georgia’s gay-marriage ban in 2006; and declining to hear an appeal from a biological mother who wanted to terminate the parental rights of her former lesbian partner in 2007, and in 2004 opposed the state Legislature’s successful attempt to place an anti-same-sex marriage amendment on the ballot.

During her Georgia Supreme Court re-election campaign in 1998, one of her two opponents spread the idea that Sears supported same-sex marriage. Sears declined comment; her campaign manager said Sears’ statements used in the accusations were taken out of context.

So where does former Georgia Supreme Court Justice Leah Ward Sears stand on same-sex marriage?

Earlier this month, she said in a newspaper column that she was "never against same-sex marriage." Never is pretty definitive and PolitiFact Georgia sets the bar high when someone is absolute about whether they’ve said or claimed they’ve never made a particular statement.

Sears was careful not to enter the controversial fray during her time on the bench, and from the research we reviewed, she had not taken a public stance on the issue. Still, she went to work a few years ago for a conservative think tank whose leader has been a staunch same-sex opponent, and she told PolitiFact Georgia that she is grappling with her position on the issue. In addition, her legal record while on the Georgia Supreme Court shows she has sided with the majority on rulings that have been cheered and jeered by gay rights activists.

We ruled her statement Mostly True.

Staff writer Karishma Mehrotra contributed to this article.

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