An unexpected Supreme Court decision Monday not to get involved in the country’s same-sex marriage debate may have cleared the way for the unions to become legal in North Carolina, perhaps in a matter of days.
State Republican leaders, who helped the state pass the country’s last voter-approved marriage ban in 2012, pledged Monday to continue the fight, though they offered few details.
North Carolina Gov. Pat McCrory of Charlotte, however, expressed grudging acceptance of the inevitability of same-sex marriage becoming legal in his state.
While McCrory said he did not agree with the Supreme Court’s decision, he told WSOC-TV that he must respect it.
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Any appeals by the state would be heard by the same courts that struck down a similar ban in Virginia, leading McCrory’s legal advisers to conclude that North Carolina marriage laws will have to change “over a very short period of time,” the governor said.
Likewise, legal experts said the high court’s decision not to intervene in the marriage rulings in Virginia and four other states leaves North Carolina opponents little time or grounds for mounting a late defense. Thus, a July decision by the 4th Circuit Court of Appeals that struck down the Virginia ban applies to the Carolinas, too.
A federal judge in Greensboro who is hearing two of the legal challenges to the state’s marriage laws seemed to be leaning that way Monday afternoon.
In his order, U.S. District Judge William Osteen said “it would appear plaintiffs are entitled to ... a preliminary injunction” striking down North Carolina’s same-sex bans.
But Osteen gave both sides 10 days to file motions on how he should proceed. That potentially gives House Speaker Thom Tillis, who is locked in a pivotal U.S. Senate race with Democratic incumbent Sen. Kay Hagan, and Senate President Phil Berger time to make good on their promise Monday to intervene.
Chris Brook, legal director of the American Civil Liberties Union of North Carolina, said any continued opposition by the state is akin to “taking a wad of taxpayer money, walking to the nearest toilet, and flushing it.”
“The Supreme Court has spoken,” Brook said. “The 4th Circuit Court of Appeals has spoken. It’s very clear what the governing precedent is in North Carolina.
“Their efforts to intervene at this extreme late hour are incomprehensible.”
Maxine Eichner, a family law specialist at UNC School of Law, said the last hope that opponents have is to raise some new legal argument.
“It’s unlikely, and with that said, there is nothing at issue that hasn’t already been decided,” she said.
Meanwhile, Brook said he is working with the other parties in the two cases before Osteen to give the judge what he’s asked for in the shortest time possible.
“Every day that gay and lesbian couples in North Carolina are denied the ability to marry the person they love places their families and children in legal and financial jeopardy,” Brook said. “The time has come to end this unfair treatment once and for all.”
In May 2012, North Carolina voters approved the country’s most recent constitutional ban on same-sex marriage. The measure, which was put on the ballot by a GOP-controlled General Assembly, passed with more than 60 percent of the vote.
Today, that appears to have been the last hurrah for opponents to gay marriage. Eichner said the North Carolina vote may have helped fuel a period of rapid change among voters and the courts over the issue of marriage.
Within hours of the passage of North Carolina’s ban, President Barack Obama announced support for same-sex marriage for the first time. The national NAACP soon joined in.
A year later, the Supreme Court struck down the federal Defense of Marriage Act, setting off a series of rulings by lower courts declaring their states’ marriage bans illegal.
“The speed of change in this has been breathtaking,” Eichner said. “I think it’s hard to understand how rapidly the legal landscape has changed.”
For the Carolinas, the Virginia case is the most notable. The three states along with Maryland and West Virginia comprise the 4th Judicial Circuit. The appeals court ruling last summer that struck down the Virginia law must be applied by judges in the Carolinas’ cases, unless there are significant differences in the arguments.
Instead, experts say the Virginia and North Carolina cases are remarkably similar.
“There’s really nothing left to hold the district courts back from issuing a decision,” said Greg Wallace, a Campbell University law professor and supporter of traditional marriage. “I think it’s sooner rather than later.”
Charlotte also has produced its own challenge to the marriage bans – from houses of worship here and across the state who say the state marriage bans block their constitutional right to practice their religions.
Charlotte attorneys Jake Sussman and Luke Largess said Monday they will file a motion in their case asking U.S. District Judge Martin Reidinger to abide by the existing 4th Circuit ruling and “allow the next logical step to be taken.”
Two of their clients, Cathy Fry and Joanne Marinaro, celebrated what they described as “Happy Monday” with Facebook posts.
The women, who have been together for almost 30 years, have refused to go out of state to marry, saying they will wait until North Carolina recognizes their union.
“I am blown away,” Fry said. “We are pinching ourselves to see if this is real. And now it’s, oh my gosh, how are we going to make this happen?”
Lennie Gerber, a plaintiff in one of the cases filed in Greensboro federal court, said Osteen must act soon. The oldest of the challenges before him was filed in June 2012.
“He’s run out of excuses,” said Gerber, who joined the case because state laws limit how much say she has in the medical treatment of her 89-year-old spouse, Pearl Berlin, who is in poor health.
The pair, who have been together for 48 years, were married in Maine last year. They also held a wedding celebration in North Carolina before friends and family. As soon as the law allows, Gerber said, she wants the papers from that ceremony filed at her local courthouse.
“Forget the Maine wedding,” she said. “This is the one that’s really important.”
Monday’s news caught many supporters of the marriage bans off guard.
“I think everybody’s a little bit in shock, people on both sides,” said Mark Harris, who helped run the Amendment One campaign and later ran unsuccessfully for the U.S. Senate.
“Admittedly it becomes much more difficult for these constitutional amendments to be able to stand up,” Harris said. “But we’ll have to go through the process. ...”
N.C. Values Coalition leader Tami Fitzgerald of Raleigh cited the high percentage of voter support for the state’s marriage ban and said the federal appeals courts rulings so far are “bad decisions.”
“It is outrageous that courts believe they can overturn the biblical meaning of marriage, the will of the people and the definition that marriage has had throughout history in every culture,” she said.
Two years ago, North Carolinians passed Amendment One by a 22-point margin. Today, according to polls, support for the ban has shrunk to around 50 percent. Among younger voters, the issue is flipped: 62 percent support same-sex marriage compared with 33 percent who say it should be illegal.
Changes, plans underway
After the 4th Circuit Court of Appeals’ ruling in July, North Carolina Attorney General Roy Cooper, an expected Democratic candidate for governor in two years, announced he would no longer defend the state’s marriage laws in court.
South Carolina has its own marriage case pending. In response to the Supreme Court’s decision, Attorney General Alan Wilson said Monday that his state’s constitution will be defended until a ruling is made in the case.
John Nichols, a Columbia attorney who filed the marriage complaint last year, said he plans this week to ask U.S. District Judge Michelle Childs to apply the Virginia ruling. Nichols said Monday he does not know how hard Wilson – or Gov. Nikki Haley – plans to fight him.
“We do things differently in South Carolina, and we’ve been doing it that way since firing on Fort Sumter,” Nichols said. “It’s our hope they realize they don’t want to waste any more taxpayer resources on this case.”
Behind the scenes, changes in North Carolina are already underway.
Laura Riddick, register of deeds for Wake County, said the state Department of Health and Human Services has already devised a gender-free wedding application. Riddick called on the agency to make the form available now so courthouses statewide can be ready when the final marriage ruling comes down.
In Mecklenburg County, Register of Deeds David Granberry said he and his staff are creating a form that would replace the mention of bride and groom with something “appropriate for the situation.”
Throughout the day, supporters of marriage equality were going to their phones or their computers to better understand what the court’s decision means.
“If this means we can soon marry same-sex couples in North Carolina, I’m more than ready,” said the Rev. Nancy Kraft, pastor of Holy Trinity Luthran Church, one of the Charlotte churches who filed suit against the state. “We’re going to wait until we know for certain.”
Marinaro and Fry, two members of Kraft’s congregation, were reacting in similar fashion.
“There are a lot of folks at our church who are just like Joanne and I,” Fry said. “Maybe we all have a wedding and do it quickly.
“Then we’ll have a great, big party.” Mark Price, Jim Morrill and the Associated Press contributed.