RALEIGH Attorney General Roy Cooper will not oppose a move by the American Civil Liberties Union to amend an existing lawsuit to challenge North Carolina’s ban on gay marriage.
The ACLU asked Cooper to allow the change on Tuesday. The existing lawsuit, filed against the state in federal court in Greensboro last year, challenges the state ban on second-parent adoption and involves six same-sex couples. Second-parent adoption occurs when one partner in an unmarried couple – gay or straight – adopts the other partner’s biological or adoptive child.
The amendment sought by the ACLU would expand the scope of the lawsuit to seek to overturn the constitutional ban on same-sex marriage, approved by voters last year. A federal judge must approve the expansion of the lawsuit.
“Us saying yes isn’t the end of the issue,” said Cooper’s spokeswoman Noelle Talley. “The ultimate decider in this case is the judge.”
Talley said Cooper made the decision for the sake of efficiency.
“These issues are going to be litigated whether they’re separate cases or combined into one case,” she said.
The ACLU will now create a motion to amend the complaint and then file the updated complaint with the court. It hopes to do so by early next week, said Chris Brook, legal director of the ACLU of North Carolina.
The move to challenge the ban on gay marriage came less than two weeks after the U.S. Supreme Court struck down part of the federal Defense of Marriage Act, which had blocked married same-sex couples from receiving the same benefits as heterosexual ones.
The language of the ruling provided the impetus to link same-sex marriages and second-parent adoptions, Brook said.
Tami Fitzgerald, executive director of the N.C. Values Coalition, called Cooper’s decision “misguided.”
“The people of North Carolina passed the marriage amendment by 61 percent and they deserve better from their attorney general,” Fitzgerald said in a statement. “The constitutionality of the amendment is outside of the scope of a lawsuit regarding adoption by gay couples.”
Lee Knight Caffery of Charlotte said Cooper’s decision keeps the momentum for her side.
“We are elated that this moves the ball forward,” said Caffery, who with her partner Dana Draa is one of six same-sex couples serving as plaintiffs in the case.
“This is not a victory by any means. But we’re thrilled that this moves us one step closer by a few weeks or months. It’s very welcome news.”
Although it has not yet spoken with the judge, the ACLU is optimistic about the case.
“We are confident that the court will ultimately approve this amendment,” Brook said. “It’s a relatively modest request that we’re making, which is just to be heard on these additional claims.”
The amendment request was part of a broader push by the ACLU for same-sex marriage in the United States.
Also on Tuesday, the group filed a federal challenge to Pennsylvania’s marriage ban and announced a challenge to Virginia’s ban.
On Thursday, Pennsylvania Attorney General Kathleen Kane said she would not defend the state against a lawsuit challenging the ban.
Observer Staff Writer Michael Gordon contributed.
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