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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

 

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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.