Lawyers with the American Civil Liberties Union plan to return to federal court in North Carolina within the next week to seek speedy nullification of the state’s ban on same-sex marriage.
Chris Brook, legal director of the ACLU of North Carolina Legal Foundation, said Tuesday that a federal appeals court ruling Monday invalidates Amendment One, the 2012 amendment to the state constitution defining marriage as a union between a man and a woman.
A three-judge panel from the 4th U.S. Circuit Court of Appeals ruled that Virginia’s statutory and constitutional provisions banning same-sex marriage violate the U.S. Constitution. North Carolina is part of the same circuit, and the ruling on the Virginia case has sweeping legal implications.
N.C. Attorney General Roy Cooper said Monday that he no longer would defend the 2012 amendment, setting up a political battle between him and the two GOP legislative leaders.
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At a news conference Tuesday, N.C. Senate President Pro Tempore Phil Berger and House Speaker Thom Tillis said they thought it was important to defend the state ban.
“Until the U.S. Supreme Court makes what could be argued as a final decision, I think we should,” Berger told reporters.
But Berger said he and Tillis had not discussed hiring outside legal assistance.
“We don’t have any plans at this point to do anything,” Berger said Tuesday afternoon. “But as you know, there is a provision that would allow the legislative leaders to intervene. I hope that is not necessary. If it becomes necessary, we will consider it.”
Although the decision is likely to be appealed to the U.S. Supreme Court, ACLU attorneys say they plan to use the appeals court ruling to bolster their claims that North Carolina’s amendment barring same-sex marriages violates the federal equal protection right.
“Obviously, very rapid developments and very exciting developments have occurred as a part of that decision,” Brook said. “It makes clear that Amendment One’s days are numbered here in North Carolina. It is a matter at this point, not if Amendment One is struck down, but when Amendment One is struck down.”
Since 2012, the ACLU has filed or amended three lawsuits in North Carolina’s federal courts.
A group of clergy argue that prohibiting them from performing marriages for same-sex couples violates their religious freedom.
Six North Carolina families have argued that prohibiting legal recognition of their marriages is a form of segregation that is not acceptable under the 14th Amendment guaranteeing equal protection under the law.
At the news conference inside the LGBT Center in downtown Raleigh, several of the people behind the ACLU lawsuits spoke about the legal challenges they face as same-sex couples.
Brook said their complaints ranged from the mundane – such as not being able to sign school field-trip permission slips for the children in their relationships – to the momentous, such as those that arise from grave health care issues.
Shawn Long of Wake Forest spoke about being denied a family membership to the Y and the questions raised by his child after seeing other families treated differently.
“We want the same protections and securities that others have,” Long said.
‘While she’s still alive’
Jane Blackburn and Lyn McCoy traveled from Greensboro to Raleigh on Tuesday to explain why they wanted their marriage from elsewhere recognized in their home state.
Blackburn is battling Stage 4 breast cancer, and after 23 years with McCoy, they worry they won’t make it to a North Carolina altar in front of family and friends.
“We want to get married while she’s still alive to do it,” McCoy said.
Outside lawyers possible
At Tuesday’s news conference Berger and Tillis questioned Cooper’s decision not to defend Amendment One, which passed in May 2012 with 60 percent of the voters approving it. But critics of the ban point out that overall voter turnout for the ban was 34.66 percent for the primary election, and to describe support for the ban as something that an overwhelming majority of North Carolina residents are behind is not an accurate portrayal.
Last year, Tillis and Berger hired outside lawyers to look over the attorney general’s shoulder in same-sex marriage cases. A bill that passed last year also gave the two General Assembly chamber leaders authority to intervene “on behalf of the General Assembly” in legal challenges of the state’s laws.
The ruling in the Virginia case does not go into effect for 21 days. The delay allows time for an appeal to the U.S. Supreme Court, which legal analysts consider likely, pushing the issue of gay marriage to the country’s highest court.
The U.S. Supreme Court could decide as early as next year whether to take up the case from Virginia or a similar decision in the 10th Circuit overturning bans in Utah and Oklahoma.
Absent a stay on the Virginia ruling, the decision is considered the law for the federal judicial circuit that stretches from Maryland to West Virginia to Virginia, North Carolina and South Carolina.
Appeal path mulled
The three-judge panel described Virginia’s ban on same-sex marriage as unconstitutional and likened the legal foundation on which they based their decision to a case striking down laws that once prohibited interracial marriage.
Brook acknowledged that an appeal to the U.S. Supreme Court could mean marriages of same-sex couples will not occur immediately in North Carolina.
Virginia is expected to seek a stay pending an appeal. It could ask for a review from the full appellate court or go directly to the Supreme Court.
Nevertheless, the ACLU attorneys want to be prepared to move quickly. They plan to argue that North Carolina’s ban should be overturned immediately.
“The time to act is now,” Brook said. “The law is very clear here in North Carolina.”
Staff writer John Frank contributed to this report.