Court challenge could topple NC same-sex marriage ban

mgordon@charlotteobserver.comApril 4, 2014 

  • Road-trip weddings

    Three years ago, three Charlotte clergy members led a trip to Washington, D.C., to marry seven same-sex couples and bring attention to marriage equality. A year later, North Carolina voters passed a constitutional ban on gay marriage.

    Next month, Rabbi Judy Schindler and the Rev. Robin Tanner and Nancy Allison will make another eight-hour trip to Washington, again to perform marriages for same-sex couples, which they are legally blocked from doing in North Carolina.

    This time, they hope the event precedes a different kind of history.

    On May 13, a federal appeals court hears a case that legal experts believe could lead to the overthrow of North Carolina’s so-called “Amendment One.”

    The proximity of the court case and the second wedding trip on May 2 is striking. But Allison, pastor of Holy Covenant United Church of Christ on W.T. Harris Boulevard, says the timing does not make these weddings more special.

    “Every wedding each of us performs carries deep meaning – because each couple enters the relationship intending it to last a lifetime,” she said. “We take this collective action because it is the right and just thing to do for couples committed to marriage.

    “It is a burden for them to travel and deprives them of the opportunity to have their local friends and neighbors celebrate the experience with them. We all hope it will be the last such trip necessary.”

If a federal appeals court follows the national trend, North Carolina’s 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 country’s 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 Carolina’s 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. Utah’s legal showdown begins Thursday.

Same-sex marriage is already allowed in Maryland. And on Valentine’s Day, a federal judge in Virginia ruled her state’s 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 court’s decision could come as soon as late summer.

“Potentially, the court could narrowly apply their decision to Virginia, but it’s hard to see how they would do that,” says Maxine Eichner, a specialist in sexuality and the law at UNC School of Law.

North Carolina’s 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 Carolina’s 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 state’s 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 Circuit’s decision before pushing the case ahead.

“Judge Osteen sees the writing on the wall and knows there’s 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 Carolina’s marriage referendum, still has hope that the marriage law will survive.

In it’s 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. “We’ve established state law. If they follow the Supreme Court precedent, our law will be upheld.”

Eichner sees the amendment’s 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 don’t 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 city’s 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 court’s 5-4 ruling struck down the federal Defense of Marriage Act. Justice Anthony Kennedy’s 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.

“It’s 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 they’ve experienced a greater sense of acceptance from their neighbors, at the grocery store, even from strangers on the street.

Some things haven’t 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. He’s 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 we’re married, that we have some rights, and hopefully before I die, we’ll have a lot more,” says Diuguid, who, at 68, has been with her partner for more than 25 years.

“It’s about time we get the same rights as everybody else. We just want to be accepted. I don’t know how else to express it.” Researcher Maria David contributed.

Gordon: 704-358-5095

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