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Gay marriage 3It’s been less than two years since North Carolina officially enshrined discrimination in its constitution by passing the execrable Amendment One. Now, less than 24 months later, just as Speaker Thom Tillis famously/infamously predicted, the law seems fast on its way to obsolescence and, ultimately, the dustbin of history.

Yesterday, lawyers with the ACLU of North Carolina asked a federal court to block enforcement of the law on behalf of three same-sex couples seeking recognition of their marriages – a result that developments in other states makes increasingly plausible.

Now, today, new polling shows that a sizable majority of North Carolinians opposes the substance of the discrimination amendment. According to one of the nation’s most accurate polling shops, Raleigh-based Public Policy Polling, not only do 40% of voters (62% of young voters) favor total marriage equality, but:

“There is increasingly little division among voters in the state about whether gay couples should at least have some sort of legal rights in the form of civil unions. 62% support either marriage or civil unions for same sex couples to only 34% who think they should have no legal recognition at all. 68% of both Democrats and independents support at least civil unions, and even Republicans narrowly do by a 50/48 spread.”

The discrimination amendment, of course, bars even civil unions for same-sex couples. All in all, it’s hard to see how the amendment survives the decade — and maybe even the year. Stay tuned.

Lawyers with the American Civil Liberties Union and the ACLU of North Carolina Legal Foundation are ramping up the challenge to the state’s same-sex marriage ban, today filing a new complaint in federal court on behalf of three married, same-sex couples seeking state recognition of their marriages. Because of the serious medical condition of one member of each couple, they are asking the court to stop the state from enforcing the ban while their lawsuit continues, claiming that they will suffer irreparable harm otherwise.

The ACLU also sought similar relief on behalf of one of the couples in the case already pending in Greensboro, Fisher-Borne et al. v. Smith, who have a young child being denied critical medical care because North Carolina neither recognizes his mothers’ marriage nor allows both mothers to adopt their child and establish a legal relationship.

That couple, Megan Parker and Shana Carignan, have been in a committed relationship for six years and were legally married in Massachusetts in September 2012.  They have a 6-year-old boy with cerebral palsy, J.C., whom they first welcomed into their family as foster parents. Parker ultimately adopted the boy, and although both she and Carignan share equally in all of their parental responsibilities, only Parker is legally recognized as J.C.‘s parent because of North Carolina’s ban on same-sex marriage and its impact on adoptions.  

As a result, the couple is unable to obtain adequate  insurance to cover all of J.C.’s medical bills. As stated in their brief filed in court today:

J.C. has cerebral palsy, cannot walk and has limited ability to control his limbs or communicate verbally. Because of his condition, he requires constant and considerable care, and is at a critical point in his growth and development. Because he was adopted by Ms. Parker from foster care, J.C. is covered by Medicaid.  Ms. Parker is also covered under Medicaid because of a stroke that she had last year. Ms. Carignan is covered by Blue Cross Blue Shield through her employment. Under the North Carolina Health Insurance Premium Payment Program, the state would pay the premiums required for J.C. to receive secondary coverage for the expenses Medicaid does not cover through a legal parent‘s private insurance. However, because Ms. Carignan is not J.C.‘s legal parent, this state program is unavailable.

Parker and Carignan are already waiting for a decision in the Fisher-Borne case on the state’s request to dismiss their complaint.

That pending decision, the filing of the new case and the injunction sought today come at a time when more and more federal courts across the country are dismissing state same-sex marriage bans as unconstitutional — including such a ruling in Virginia, now on appeal in the 4th U.S. Circuit Court of Appeals in Richmond and scheduled for argument on May 13.

The complaint in the new case, Gerber v. Cooper, is here.

Same Sex Marriage Injunction NC by NC Policy Watch

 

The National Journal has this quick summary of where the fight for marriage equality stands across the country, along with an interactive map that highlights how the push to expand rights is predominating the landscape.

In a sign of changing times, the fight over marriage rights is now overwhelmingly being waged by activists who favor same-sex marriage, rather than those working to restrict marriage to heterosexual couples. A decade after 11 states passed constitutional bans on same-sex marriage thanks to a coordinated effort by supporters of President Bush to boost his numbers, only two states—Indiana and Wyoming—are currently pursuing limitations to the marriage rights of same-sex couples. Meanwhile, efforts are underway in 24 states to expand them.

In North Carolina, that push is playing out in federal court in Greensboro in Fisher-Borne v. Smith, the case in which several families who originally filed a complaint concerning second parent adoption have  added a challenge to the state’s voter-approved constitutional amendment banning same-sex marriage.

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Continuing a trend in federal district courts across the country, U.S. District Judge Arenda L. Wright Allen ruled yesterday that Virginia’s same-sex marriage ban is unconstitutional. In a well-written and thoughtful opinion that recognizes choice as an American value and ends with a quote from Abraham Lincoln, Wright Allen began:

A spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America. America has pursued a journey to make and keep our citizens free. This journey has never been easy, and at times has been painful and poignant. The ultimate exercise of our freedom is choice. Our Constitution declares that “all men” are created equal. Surely this means all of us. While ever-vigilant for the wisdom that can come from the voices of our voting public, our courts have never long tolerated the perpetuation of laws rooted in unlawful prejudice. One of the judiciary’s noblest endeavors is to scrutinize laws that emerge from such roots.

Before this Court are challenges to Virginia’s legislated prohibition on same-sex marriage. Plaintiffs assert that the restriction on their freedom to choose to marry the person they love infringes on the rights to due process and equal protection guaranteed to them under the Fourteenth Amendment of the United States Constitution. These challenges are well-taken.

Courts elsewhere have ruled likewise.  In Utah, a two-judge panel of the 10th U.S. Circuit Court of Appeals refused to stay a district court’s order striking down that state’s ban on same-sex marriage. And in Ohio, a federal judge ruled that states are constitutionally obliged to accept the marriages of same-sex couples performed legally in other states.

The same question is before a federal judge in Greensboro regarding the constitutionality of North Carolina’s same-sex marriage ban.  In Fisher-Borne v. Smith, several families who originally filed a complaint concerning second parent adoption have since amended their complaint to add a challenge to the state’s voter-approved Amendment One, which defines marriage as the union of one man and one woman.

Read the full Virginia decision here.

As detailed in this morning’s Wall Street Journal, state courts have begun embracing the U.S. Supreme Court’s decision in U.S. v. Windsor, striking down part of a federal law that defined marriage as a union between a man and a woman, and even building on that ruling in challenges over state laws concerning same-sex marriage and other issues affecting gays and lesbians.

“It’s a pattern that’s emerging—and it’s striking,” said David Cruz, a law professor at the University of Southern California and an expert on civil-rights law. Rather than finding ways around Windsor, he said, “judges are embracing its principles.

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The effect of Windsor could grow significantly in months to come, say legal experts. More than a dozen challenges to same-sex-marriage laws are pending, nine of which were filed post-Windsor, according to Jon Davidson, the legal director at Lambda Legal, which advocates on behalf of same-sex couples seeking the right to marry.

That includes a challenge in North Carolina which began as a lawsuit concerning the state’s adoption laws as applied to gay couples but has since expanded, with the consent of Attorney General Roy Cooper, to include a challenge to the state’s ban on same-sex marriage.