ACLU sues for faster action to overturn NC same-sex marriage ban
04/09/2014 2:48 PM
04/09/2014 7:19 PM
Later this year, three federal judges could strike down North Carolina’s ban on same-sex marriage.
Esmeralda Mejia worries she can’t wait that long.
The Hickory woman is among several same-sex married couples who, for urgent health reasons, are seeking an immediate end to the state’s legal roadblocks to gay unions.
Their lawsuit, which was filed Wednesday, also calls for a federal judge to order North Carolina to recognize marriages performed in other states, and to throw out its law that allows only one partner in unmarried couples to adopt.
Some, if not all, of these steps could be taken by the Fourth Circuit Court of Appeals. Next month, it will review the February decision by a Virginia judge finding that state’s same-sex marriage ban unconstitutional. The appeals court decision, which legal experts say likely would apply to the Carolinas and West Virginia, could come by fall.
Given the health issues affecting the North Carolina couples, that’s too long to wait, said Chris Brook, legal director of the American Civil Liberties Union of North Carolina, which helped file a motion Wednesday calling for quick court action.
“While we are exceptionally encouraged and heartened by the Virginia case, there’s no set timeline on when the Fourth Circuit could rule,” Brook said.
“These couples are being harmed now. That’s why we’re filing. We believe their marriages should be recognized today. Not in a few months. Not in a few years. That may be too late.”
Mejia, a retired Army major and decorated Desert Storm veteran, has fought cancer for more than 20 years. The disease took part of a lung and three ribs. It also brought on a 2008 liver transplant and forces her to take a heavy battery of drugs.
She and Christina Ginter-Mejia, who met during college, were married in Maryland. They have a 7-year-old adopted son whom Mejia says was born into her arms.
However, North Carolina says Ginter-Mejia is the boy’s only legal mother, leaving Mejia “a legal stranger in her son’s life,” according to Brook. Nor can the boy and Mejia’s spouse receive any of her veteran’s or Social Security benefits as long as North Carolina doesn’t recognize the marriage.
Given her health problems, which she says arose from her military service, Mejia, 58, said she wants her roles as a mother and a spouse cleared up now.
“I worry every day that the next time I have to go to the emergency room will be the last time,” she told the Observer.
“I am in a married, loving couple. I would give my life for my son and my spouse. I feel I deserve the honor to have the same benefits as every other married couple in North Carolina. I love this state. I want this beautiful state to honor my marriage.”
The ACLU and other groups already have filed a legal challenge to North Carolina’s single-parent adoption law and its constitutional ban on same-sex marriage, commonly known as Amendment One, which voters approved in 2012.
But as courts around the country have struck down similar bans or required states to recognize legal marriages performed elsewhere, the North Carolina case has languished. Legal experts say Judge William Osteen of the U.S. Middle District of North Carolina in Greensboro appears to be waiting for the Fourth Circuit ruling before moving the North Carolina case along.
In its filing Wednesday, the ACLU and the couples it helps represent are asking for immediate relief from the federal courts in Greensboro, where the lawyers and couples gathered for an afternoon press conference. Brook said he hopes to have his motion heard by a judge in a matter of days.
UNC law professor Maxine Eichner described the new lawsuit as “a smart move.”
She said the call for immediate relief could bring a marriage decision in North Carolina before the Fourth Circuit acts. The need to quickly address the impact of marriage laws was a factor in last week’s decision by an Ohio judge ordering that state to recognize same-sex marriages performed elsewhere, she added.
“Certainly it looks like the Middle District (in North Carolina) has been reluctant to move,” said Eichner, a specialist in law and sexuality and a frequent critic of Amendment One. “But are there legal grounds for delivering a (quick) decision in this case? Yes, there are.”
Attorney General Roy Cooper, along with clerks in Catawba and Guilford counties, were among those named as defendants.
Cooper, who’s expected to run for governor in two years, supports same-sex marriage rights. Asked for a response to the new lawsuit, Noelle Talley, the attorney general’s spokeswoman, reissued an old comment from Cooper about the case.
“North Carolina should change its laws to allow marriage equality, and I believe basic fairness eventually will prevail. However, when legal arguments exist to defend a law, it is the duty of the Office of the Attorney General under North Carolina law to make those arguments in court.”
One of the couples who was part of the original suit also appears atop the new one. Shana Carignan and Megan Parker of Greensboro were married in Massachusetts. Their adopted 6-year-old son Jax has cerebral palsy. He qualifies for Medicaid. But because the state recognizes only Parker as the boy’s mother, Carignan can’t put him on her private insurance, which would provide better care, the lawsuit says.
Lennie Gerber of High Point, who has been living with her partner, Pearl Berlin, since 1966, told the Observer that she’s waited long enough for her state to act. The pair moved to North Carolina in 1971. They were married in Maine last year.
Gerber said she wants all barriers to their marriage removed while she and Berlin are still alive. Berlin, 89, suffers from seizures and chronic blood clots, and has been hospitalized three times in the last two years.
“She’s very frail. I’m afraid,” says Gerber, 78, a retired attorney. “Think how it will feel if Pearl dies and her death certificate says she was single. I couldn’t stand it. After all this, it would be like I was nothing for her. That none of this mattered.”
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