ACLU moves to challenge NC gay marriage ban

cowens@newsobserver.comJuly 9, 2013 

— The American Civil Liberties Union says it wants to challenge North Carolina’s constitutional ban on same-sex marriages by asking the state Attorney General to allow the group to amend an existing lawsuit on second-parent adoptions.

The announcement Tuesday 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 at heterosexual ones.

Emboldened by the language of the ruling, the ACLU is asking Attorney General Roy Cooper to allow the group to make its case against the state’s marriage ban in court, said Chris Brook, legal director for the ACLU of North Carolina

“All we’re asking is they consent to our amending the complaint,” Brook said.

The existing lawsuit, filed against the state in federal court in Greensboro last year, involves six same-sex couples and challenges a state ban on second-parent adoptions. This kind of adoption occurs when one partner in an unmarried couple – gay or straight – adopts the other partner’s biological or adoptive child.

A spokeswoman for Cooper’s office said it wanted to see something in writing from the ACLU before making a decision.

“Attorneys with our office have been in contact with the ACLU on this and are working to get a draft from them to review,” spokeswoman Noelle Talley wrote in an email. Brook said the group had given Cooper’s office a proposed amendment to the lawsuit late Tuesday.

The request is part of a broader push by the ACLU for legal 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. Same-sex marriage is legal, or soon will be, in 13 states and the District of Columbia.

Brook said the North Carolina lawsuit has always been about protecting children and families. The language of the Supreme Court’s Defense of Marriage Act ruling helped link second-parent adoptions and same-sex marriages, he said, providing an impetus for expanding the scope of the lawsuit.

“The Supreme Court focused on the harm to families, and to children that comes when marriages are not recognized by the government,” Brook said.

If the Attorney General denies the ACLU’s request, it will petition the federal court to expand the lawsuit.

Tami Fitzgerald, executive director of the N.C. Values Coalition, called the ACLU’s strategy “a miscarriage of justice” and referred back to Amendment One, the constitutional ban on same-sex marriage in North Carolina that passed last year.

“The voters of North Carolina deserve to have the last say on marriage, not the federal courts,” Fitzgerald said in a statement.

The Attorney General should deny the request, she said.

Equality NC, an advocacy organization for gay and lesbian people, supports the proposed expansion of the lawsuit.

“It seems clear that supporting families and children in the state of North Carolina and beyond includes relationship recognition for those couples and those families, giving them protections, rights and responsibilities,” said Jen Jones, Equality NC’s director of communications.

A couple involved in the case, Marcie and Chantelle Fisher-Borne of Durham, each gave birth to one of their two children, Miley, 5, and Eli, 1. The couple married two years ago in Washington, D.C., but North Carolina does not recognize the marriage and each woman is the legal parent only of her biological child.

“The interesting thing for us is our children never belonged to anyone else,” Marcie Fisher-Borne said. “It’s sort of ironic that the fight is to adopt the children that have always been ours.”

Chantelle Fisher-Borne said the couple would not need a second-parent adoption if they could be legally married in North Carolina. The couple could simply adopt each other’s biological child, as same-sex couples can now.

The reality of the couple’s limited parental rights hit the day Marcie gave birth to Miley, when the nurse asked for an additional copy of their paperwork to allow Chantelle to stay overnight. They have since continued to navigate their atypical situation.

“It’s been the constant erosion and questioning that becomes exhausting,” Marcie said. “Our kids are getting to the age they can sense that, and they will increasingly sense that disparity.”

Owens: 919-829-4567

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