If a federal appeals court follows the national trend, North Carolinas ban on same-sex marriage could be upended this year.
Next month, three judges from the Fourth Circuit Court of Appeals will hear a case that could radically change the legal landscape for same-sex couples in a state that passed the countrys last voter-approved block to gay unions.
Over the past year and with stunning speed, states as varied as Kentucky to Utah have overturned marriage bans or agreed to recognize legal unions from other states.
Now, less than three years after it was put in place, North Carolinas so-called Amendment One also appears in jeopardy.
The Fourth Circuit, which covers the Carolinas, West Virginia, Virginia and Maryland, is one of several appeals courts around the country that will hear potentially ground-breaking marriage cases in the coming months. Utahs legal showdown begins Thursday.
Same-sex marriage is already allowed in Maryland. And on Valentines Day, a federal judge in Virginia ruled her states gay marriage ban unconstitutional.
That ruling is now being appealed, and in line with the speed of other marriage-equality appeals, that case will be heard by the Fourth Circuit panel May 13.
If the judges allow the Virginia court ruling to stand, they almost certainly also will strike down existing marriage bans in the Carolinas and West Virginia, legal experts expect. The courts decision could come as soon as late summer.
Potentially, the court could narrowly apply their decision to Virginia, but its hard to see how they would do that, says Maxine Eichner, a specialist in sexuality and the law at UNC School of Law.
North Carolinas constitutional ban on gay marriage was passed by more than 60 percent of the voters in May 2012. A month before the referendum, House Speaker Thom Tillis, who supported the ban, predicted the amendment would be reversed within a generation.
Now, the federal courts could cut at least a decade off that prediction.
I thought we were years and years away from ever obtaining any type of marriage equality, that a federal ruling was 10 to 20 years down the road, and then it would take another 10 years for the states to fight it out in court, says Eric Hinson of Indian Trail, who married his longtime partner three years ago.
But attitudes are changing. People are changing. Thoughts about gays and lesbians are changing, too.
A court ruling that overturns North Carolinas marriage amendment so quickly after state voters put it in place would not be universally welcomed, however. An Elon University poll in September showed that despite growing acceptance for same-sex couples in North Carolina, 47 percent of the states residents opposed marriage equality; 43 percent supported it.
Meanwhile, North Carolina courts have their own marriage lawsuit to consider. But U.S. District Judge William Osteen of Greensboro, who will hear the challenge by the ACLU and several same-sex couples to Amendment One, appears to be waiting on the Fourth Circuits decision before pushing the case ahead.
Judge Osteen sees the writing on the wall and knows theres no great incentive for him to issue a decision in his case, says Greg Wallace, who teaches law at Campbell University and favors traditional marriage.
If the Fourth Circuit holds the Virginia law unconstitutional, that would effectively render the North Carolina law unconstitutional, too. It would be very hard for Judge Osteen to say, This case is different.
State Rep. Paul Stam, a Cary Republican and a key supporter of the bill that led to North Carolinas marriage referendum, still has hope that the marriage law will survive.
In its decision last summer against the Defense of Marriage Act, the U.S. Supreme Court said marriage is a matter for each state to decide, he says. Weve established state law. If they follow the Supreme Court precedent, our law will be upheld.
Eichner sees the amendments prospects differently.
Certainly the momentum on this is moving toward a federal declaration that any of these bans on same-sex marriage violates the federal equal protection clause, she says.
Whether the Supreme Court takes up the Virginia case or any of the other pending marriage-equality cases remains to be seen.
They dont have to, Eichner says. But, boy, there is a lot of momentum for them to resolve this.
Marriage and taxes
Lisa Macdonald, Myra Diuguid and Eric Hinson all celebrated third anniversaries this week.
The three were part of an unusual 2012 wedding procession to Washington, D.C. There, seven same-sex Charlotte-area couples, repeating vows led by one of the citys rabbis or two of its ministers, were wed on April 3. Many of them had been partners for more than a decade.
Married life for Macdonald and Becky Stamler, Hinson and John Johnson, and Diuguid and her partner soon tracked a historic series of highs and lows for supporters of marriage equality.
Shortly after their first anniversary, Amendment One passed in a landslide.
If we could have left, we would have, says Hinson, who lives four miles from where he grew up in Indian Trail. The reaction to his marriage had been so positive throughout the community, he says, that you forgot there were people who were working against you. It was devastating to be reminded that whole force was out there.
A week before the couples second anniversary, the Supreme Court heard arguments in its ground-breaking Windsor case. Last June, the courts 5-4 ruling struck down the federal Defense of Marriage Act. Justice Anthony Kennedys denunciation of same-sex marriage bans in the majority opinion set off a flurry of legal challenges in state after state.
Now, with another anniversary behind them, the couples attention has turned to taxes.
For the first time, the federal government has required them to file as a married couple, even as North Carolina still forces them to file as separate individuals. Hinton and Macdonald said the conflicting mandates mean they must file multiple federal and state returns.
Its a pain in the ass, but we want to be counted, Macdonald says. I want Thom Tillis and Pat McCrory and Kay Hagan, when they look at North Carolina data, to know that we are here.
Already, Hinton, Macdonald and Diuguid say theyve experienced a greater sense of acceptance from their neighbors, at the grocery store, even from strangers on the street.
Some things havent changed. The Rev. Mark Harris of Charlotte, who helped lead the campaign for passage of the marriage amendment, is now running for U.S. Senate. Hes made family values among them a commitment to traditional marriage a cornerstone of his campaign.
But with their third anniversaries just behind them, the local couples look ahead to the May court case, beginning what they hope to be a quick countdown to the time when their state bears witness to their unions.
I love the fact that were married, that we have some rights, and hopefully before I die, well have a lot more, says Diuguid, who, at 68, has been with her partner for more than 25 years.
Its about time we get the same rights as everybody else. We just want to be accepted. I dont know how else to express it. Researcher Maria David contributed.
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