As this post on SCOTUSblog reminds us, same-sex marriage cases are now pending in five federal appeals courts, including one in the Fourth Circuit, Bostic v. Schaefer, which was argued in Richmond in May.
How the three-judge panel will rule in Bostic, which deals with Virginia’s same sex marriage law, is not clear cut, according to court-watchers. From the argument, Judge Roger L. Gregory is apparently leaning toward opposing the ban, with Judge Paul V. Niemeyer supporting the ban and Judge Henry F. Floyd wavering in the middle.
A ruling in that case, though, may be binding on similar cases in North Carolina, including Fisher-Borne v. Smith and Gerber v. Cooper, both pending in federal court in Winston-Salem, General Synod v. Cooper, pending in federal court in Charlotte, and McCrory v. North Carolina, pending in federal court in Asheville.
For that reason, magistrate judges in three of the cases have stayed proceedings until a decision is rendered in Bostic and are considering a stay in the fourth (General Synod).
But plaintiffs in Fisher-Borne and Gerber are not waiting patiently for that ruling, saying they have waited long enough. In each of those cases, certain plaintiffs have asked the court to block enforcement of the state’s ban so that their marriages can be recognized and the couples can gain the rights afforded other married couples.
For example, in Fisher-Borne, a couple with a son who has cerebral palsy are unable to get the medical care he needs because state law does not recognize the partner with more comprehensive health insurance as his parent.
In Gerber, plaintiffs with serious illnesses in advanced stages have spouses and in one case a child who will be unable to receive benefits typically afforded spouses and children should those plaintiffs die.
As they argue in their brief to the court:
While this case is stalled, Ms. Mejia cannot establish a legal relationship with her son. Each day, J.G.-M. misses out on the benefits that would be conferred to him as Ms. Mejia‘s legal child, and each Plaintiff continues to suffer from the stigma and indignities that result from the North Carolina‘ ban on same-sex marriage. The need for recognition of their marriages is all the more pressing in light of Plaintiffs‘ circumstances. Dr. Berlin is 89 years old and suffers from complex seizures and blood clots that cannot be treated. Ms. Blackburn is 66 years old and has Stage IV cancer. Ms. Mejia, a war veteran, suffers from cancer and currently lives with significant lung damage and a replacement liver that requires her to take immunosuppressive drugs. In light of their ages and medical conditions, Dr. Berlin, Ms. Gerber, and Ms. Mejia each have a substantial fear that she might pass away before her marriage is recognized by North Carolina, depriving her forever of the dignity and social recognition that state recognition affords. If Ms. Mejia passes away, J.G.-M. would also be deprived of the important benefits that flow to children, particularly to children of veterans, by virtue of legal parentage. Each Plaintiff also fears—based on experience—that her right to care for her spouse in medical emergencies will be denied because North Carolina refuses to recognize their marriage.