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When my family first started attending Pullen Memorial Baptist Church in Raleigh several years ago, there was a little boy who was about the same age as our youngest daughter. His name was Max and he had a younger sister named Erin. The kids stood out a little because both Max and Erin were African-American and their two dads, Nathan and Dave, were white. I learned at the time from a close friend who knew the family well that the two kids had been adopted out of extremely rough, impoverished circumstances. The term “crack baby” was used.

By all appearances, though, the kids seemed pretty doggone normal and the parents were clearly loving and attentive. I have a vivid memory of one of the dads holding a wriggling Erin, dressed in her finest holiday dress, as Max portrayed one of the animals in the children’s Christmas play.

As the years went on and Max and his family moved away, I heard occasionally through my friend that they were doing well (Max had actually been admitted to West Point!) and took it as a remarkable testament to the power of love to overcome some of the worst things that society has to dish out — namely the grinding poverty from which the kids were rescued and the absurd and hateful discrimination that I knew the family still found itself subjected to regularly.

And then last night, my Pullen friend passed along this amazing story from writer S.L. Price of Sports Illustrated that fills in a lot of the details I had missed in recent years. Unless you are one of the shrinking number of troubled souls still clinging to a closed heart and mind on the question of LGBT equality, I promise you will be unable to read it or watch the accompanying video without feeling a lump in your throat. Indeed, it may happen even if you are — I sure hope so.

News

Supreme courtYesterday in a 2-1 decision the 6th U.S. Circuit Court of Appeals in Ohio became the first federal appeals court to uphold a state ban on same-sex marriage. In doing so, it created the split among federal circuits needed to get a marriage equality case before the U.S. Supreme Court.

The justices already considered a flurry of cases early in the term — including one from the Fourth Circuit — but declined to take any up for review. Although they gave no reason, many experts suspected that the lack of any circuit split at that time was at least one reason for their refusal. Justice Ruth Bader Ginsburg said as much in public comments.

But the Sixth Circuit decision now directly conflicts with federal appeals courts in the Fourth, Seventh, Ninth, and Tenth Circuits.

“Now there is a split, and it is a stark one,” SCOTUSblog’s Lyle Denniston wrote :

In one sweeping decision, the Sixth Circuit has given all of the states in its geographic region a victory for their bans on both initial marriages of same-sex couples and official recognition of such marriages performed outside of the couples’ home states.  By contrast, other federal courts have nullified identical bans in thirteen states just over the past few months, with the prospect that the number would soon rise to sixteen — for a total of thirty-five states, plus Washington, D.C., allowing such marriages.

A number of options now exist for parties to get a marriage case before the high court, Denniston explained later —  including asking for a direct review of the Sixth Circuit case, a review of an appeals court decision that has not yet gone to the Supreme Court (the Ninth Circuit, for example), or a review of a case pending in an appeals court.

The first option — review of the Sixth Circuit case — is the best and most likely, Denniston said, for these reasons:

Among those three options, Option 1 might have the most promise of gaining Supreme Court review because the Sixth Circuit’s decision is the one that broke the pattern, because it involves an array of cases from four states, raising the constitutionality of bans on both new same-sex marriages and the official state recognition of out-of-state same-sex marriages, because it was written by a highly respected court of appeals judge (Jeffrey S. Sutton), because it brought a stirring dissent by another well-regarded jurist (Senior Circuit Judge Martha Craig Daughtrey), and because the opinions swept across all of the issues that have been raised in case after case — even the rather obscure question whether a refusal to recognize an out-of-state same-sex marriage violates the constitutional right to travel, and the emotional question of whether a death certificate for a same-sex spouse who has now died should show that there was a surviving spouse.

And indeed lawyers in that case  have already indicated that they will move quickly, with the hope they’ll get the nod on review and then get the case on the calendar in time for argument and an opinion before the term ends in June.

News

State magistrates have a duty under state and federal law to perform same-sex marriages, despite religious convictions, Director of the Administrative Office of the Courts John Smith told Senate President Phil Berger in a letter yesterday.

In October, Berger and other GOP lawmakers had asked Smith to modify an earlier AOC memo requiring magistrates to perform such marriages, citing federal and state law protections of religious beliefs.

Rejecting that request, Smith said that such protections do not apply to judicial officials “acting in their official capacities,” which would include administering the law as it now stands with respect to marriage.

“The law is now clear that any magistrate who does officiate over marriages must  comply with the court rulings mandating equal treatment as to same-sex marriages,” Smith wrote. “Since no stays have  been issued in either of the federal cases, the federal injunction must be given effect across the state as long as magistrates perform marriages.”

The Director acknowledged that many may have sincere religious beliefs on this issue, but noted that magistrates performing civil ceremonies are not the same as ministers performing religious ones — a distinction that several across the state have managed to accept.

Smith offered up these words from the Chief Magistrate in Forsyth County, who is also an ordained minister:

Same-sex marriage is a function of the courts performed by a judicial magistrate who has sworn an oath of office to uphold the laws of the State. Holy marriage, the sacred union of a man and a woman, remains a sacrament of the Church performed by an ordained minister who has pledged a vow of holiness unto the Lord. Civil marriage and Holy matrimony are not the same even though semantically they use the same word.

Read the Director’s full letter here.

News

Same-sex marriages may be happening in North Carolina — thanks to the U.S. Supreme Court’s refusal to review the Fourth Circuit’s Bostic decision, allowing such marriages — but one day soon that might change, Lieutenant Gov. Dan Forest suggests in a recent blog post on his website.

In the article (written under his signature but posted by Kami Mueller), the lieutenant governor defends his position that the states, and not the federal government, have the sole constitutional authority to make decisions about marriage.

A majority of justices have said as much, Forest adds, pointing to language from Justice Anthony Kennedy in the high court’s 2013 U.S. v. Windsor decision and agreed to by the court’s liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan):

The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.”

Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. . ..

With those words, Forest offers hope that the high court may yet take up a marriage equality case and reverse the tide of same-sex marriages now sweeping the country.

But Forest apparently overlooked Kennedy’s words immediately preceding the quote above, in which the justice points out as a given that state marriage laws must respect a person’s constitutional rights:

In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia . . . 
And the lieutenant governor may have also forgotten this:  Only four justices need to agree to take a case. If those on the court’s conservative wing (Chief Justice John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) were intent on taking up the marriage equality issue and perhaps tipping their hats to states’ rights, they could have done so in Bostic.
Commentary

In case you missed them, two commentaries on the main Policy Watch website from earlier today are worth a look this afternoon.

In today’s “Monday numbers,” Chris Fitzsimon lists some of the latest sobering numbers surrounding the unrepentant efforts of Senator Phil Berger, Rep. Paul Stam and some other troubled souls to block enforcement of the law in North Carolina when it comes to marriage equality. Example:

4—number of says since Fayetteville minister Johnny Hunter said at Rep. Stam’s news that John Arrowood, a candidate for the N.C. Court of Appeals who is gay, is a “flaming homosexual” who should drop out of the race (“Fayetteville minister says openly gay judicial candidate is ‘biased’,) WNCN-TV, October 23, 2014)

0—number of times that Rep. Stam has publicly condemned the comments or openly expressed his disagreement with them

Meanwhile in “Judgeships crowd ballot with bubbles,” commentator Steve Ford of the North Carolina Council of Churches explores the wackiness of the ballot that North Carolina voters are now tackling across the state (which includes a Court of Appeals race with 19 candidates for one office). As Ford notes:

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