Commentary, News

Another victory for equality: U.S. Supreme Court slaps down Alabama anti-gay adoption ruling

equality overtonAnother day, another encouraging decision from the U.S. Supreme Court on the issue of same sex marriage equality.

Zack Ford at Think Progress reports on the latest development:

The U.S. Supreme Court has once again weighed in on the legality of same-sex relationships. On Monday, the Court issued a summary decision reversing the Alabama Supreme Court, which had refused to recognize a same-sex couple’s legal adoption from another state.

In many ways, the decision was a matter of housekeeping, addressing a conflict from the inconsistent marriage and adoption laws that preceded last summer’s Obergefell decision. The case of E.L. v. V.L. (their names were kept anonymous) was about two women who had raised three children together and then separated. To ensure the legal protection of their family despite Alabama’s ban on same-sex adoption, the couple rented a house in Georgia, where they legally secured adoption rights.

After separating, E.L., who was the biological mother, sought to block V.L. from visitation from their children. Last September (months after Obergefell), the Alabama Supreme Court ruled in E.L.’s favor, declaring that because Alabama would not have recognized Georgia’s adoption ruling back in 2007 when it was granted, it was “void.”

The U.S. Supreme Court’s decision corrected this Monday. Citing the “Full Faith and Credit Clause” of the Constitution, which requires states to respect the records and proceedings from other states. The Court ruled that under this provision, Alabama had an obligation to recognize the decision made by a Georgia state court. Because Georgia law gave that court “subject-matter jurisdiction to hear and decide the adoption petition at issue,” then the legitimacy of that ruling is not open to debate. “It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.”

What is perhaps most remarkable about Monday’s decision is how unremarkable it is. It was a per curiam decision, which means it was unsigned, and no justice noted a dissent. Furthermore, it did not actually rely on Obergefell at all and did not address the merits of same-sex adoption. It closed the case by treating E.L. and V.L. like any other couple, regardless of their sexual orientation.

The ruling follows Friday’s childish decision from the Alabama Supreme Court conceding to marriage equality. Expounding at length about how the U.S. Supreme Court’s Obergefell majority were “tyrants” and promising not to start a civil war over the issue, the Court admitted that marriage equality is as much the law of the land in Alabama as in the rest of the United States.

News

Magistrates who jumped the gun on same-sex marriage recusal law want Supreme Court review

Two state magistrates who resigned from their jobs rather than perform same-sex marriages, citing religious objections, have asked the state Supreme Court to bypass the Court of Appeals and directly review a trial court order dismissing their lawsuit against the Administrative Office of the Courts seeking reappointment and damages.

The magistrates, Thomas Holland of Graham County and Gerald Breedlove of Swain  County, alleged in their complaint that they resigned under duress after the AOC advised in an October 2014 memo that refusal to perform same-sex marriages would constitute “grounds for suspension or removal from office, as well as, potential criminal charges.”  They contend that the AOC’s opinion regarding their employment obligations failed to accommodate their religious beliefs in violation of the state constitution and left them no option other than to step down.

(Both resignations predated the legislature’s enactment of the law allowing magistrates to opt-out of their marriage duties based upon a “sincerely held religious belief.” )

In the trial court, the state argued that the magistrates resigned voluntarily and not “under duress,”  pointing out that they weren’t ever asked — let alone directed — to perform a same-sex marriage and that no one with the authority to remove them from office ever threatened to do so.  In fact, that authority rests with the senior resident superior court judge in the county, not the AOC.

Wake County Presiding Superior Court Judge George B. Rollins, Jr. agreed with the state and, in an order dated September 19, 2015, dismissed the case.

The magistrates’ appeal comes at a time when same-sex couples in the state have challenged the recusal law in federal court, contending that it violates the Establishment Clause of the First Amendment by authorizing the expenditure of public funds to accomplish a religious purpose, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment, by singling out gay and lesbian couples and denying them the fundamental right and dignity of marriage as recognized by the U.S. Supreme Court in June in Obergefell v. Hodges.

News

Magistrate recusal law lands in federal court

marriage amendmentNearly six months and 32 recalcitrant magistrates later, three couples have sued the state in federal court, challenging the law that allows magistrates to refuse to perform marriages based upon a self-professed religious objection to same-sex marriage.

In the lawsuit, filed in Asheville and assigned to U.S. District Judge Max O. Cogburn, Jr., the couples allege that the law, passed in the spring as Senate Bill 2, violates the Establishment Clause of the First Amendment by authorizing the expenditure of public funds to accomplish a religious purpose, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment, by singling out gay and lesbian couples and denying them the fundamental right and dignity of marriage as recognized by the U.S. Supreme Court in June in Obergefell v. Hodges. 

Cogburn also presided over the challenge to Amendment One filed by clergy in the spring of 2014, General Synod of the United Church of Christ v. Reisinger, and was the first federal judge in North Carolina to strike down the state ban after the ruling in Obergefell.

The plaintiffs in today’s lawsuit are Diane Ansley and Cathy McGaughey, a married couple and taxpayers in McDowell County who were also plaintiffs in the General Synod case; Carol Ann Person and Thomas Person, a married couple and taxpayers in Moore County denied the ability to marry in 1976 after two magistrates in Forsyth County claimed religious beliefs against interracial marriage; and Kelley Penn and Sonja Goodman, an engaged couple and taxpayers in Swain County who intend to marry this spring.

According to the Administrative Office of the Courts, 32 magistrates have opted out of performing marriages based upon religious objections as of October, including all four magistrates in McDowell County.

“Senate Bill 2 is unconstitutional and does not represent the values of inclusion on which North Carolina was built,”   Chris Sgro, executive director of Equality North Carolina, said in a statement.

“It targets same-sex couples directly for discrimination and in the process also restricts access to taxpayer-funded government services for all North Carolinians.”

Read the full complaint here.

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Commentary

Editorial: Magistrates same-sex marriage opt-out law is unconstitutional

Gay marriage 2This morning’s lead editorial in the Charlotte Observer hits a home run with its take on North Carolina’s discriminatory law that allows magistrates to opt out of marrying couples when to do so violates their “religious beliefs” and a new lawsuit being launched to challenge it.

Here’s the Observer:

“The complaint to be filed Wednesday in U.S. District Court in Asheville rightly argues that Senate Bill 2 violates the First and 14th Amendments in multiple ways.

First, the law uses taxpayer money to allow magistrates to violate their oath of office on religious grounds. The law provides that if all the magistrates in a county opt out, the state shall send replacement magistrates from another county to ensure that marriages are performed.

That has happened in McDowell County, the complaint says. All four magistrates there opted out, forcing a magistrate to travel regularly from Rutherford County to fulfill their job duties.

The law also provides that any magistrate who resigned because of religious beliefs and then was reappointed within 90 days of Senate Bill 2’s passage would receive credit toward retirement for that gap in service.

Both of those provisions have cost the taxpayers money to further a religious aim, a violation of the First Amendment’s Establishment Clause, the complaint says.

Senate Bill 2 also violates the Due Process Clause and the Equal Protection Clause of the 14th Amendment, the complaint says. Even if a gay couple ultimately successfully marries, their rights are violated by public officials treating them as second-class citizens.”

And here’s the excellent conclusion:

“Magistrates, like all N.C. judicial officials, take an oath swearing to uphold the U.S. Constitution. The U.S. Supreme Court has ruled that the 14th Amendment protects gay couples’ rights to marry. So the 32 N.C. magistrates who have recused themselves are violating their oath and the First Amendment’s Establishment Clause. This clearly would not be tolerated if instead of a gay couple, a magistrate objected to marrying an interracial couple.

Senate Bill 2 supporters point out it doesn’t block gay couples from marrying. That’s true, but the government is treating some citizens differently from others, an inherently discriminatory practice. The court should side with the plaintiffs, and take us one step closer to universal equality under the law.”

Click here to read the entire editorial. Let’s hope the lawsuit brings an end to this hateful and harmful law ASAP.
News

Running up the legal tab in the same-sex marriage cases

Add another $45,000 to the tab that legislative leaders ran up in attorneys fees and costs chasing their same-sex marriage opposition in the courts,  even in the face of rulings rejecting marriage bans as unconstitutional.

In addition to the fees and costs incurred by the leaders’ own attorneys, taxpayers will now also be on the hook for those additional dollars — a fee award which court fillings this week show the leaders agreed to as as a result of their involvement as intervenors in those cases.

The award goes to the Amendment One challengers as the prevailing parties to a successful civil rights claim under 42 U.S.C. 1983.

Then Speaker Thom Tillis and Senate President Phil Berger jumped into the cases in October 2014 after the federal appeals court in Richmond laid down the law in the circuit, holding in the Virginia case, Bostic v. Rainey, that state bans on same sex marriage were unconstitutional.

Just hours after that Bostic ruling in July 2014, Attorney General Roy Cooper indicated that his office would no longer defend North Carolina’s ban, saying that it was time “to stop making arguments we will lose.”

And on October 6, 2014, the U.S. Supreme Court refuse to review Bostic, making the appeals court ruling the governing law in North Carolina.

Despite those clear signals from the appeals and Supreme Courts, the self-professed fiscal conservatives took up the torch on October 9, when they asked U.S. District Judge William Osteen to allow them to intervene in the two challenges pending before him.

Osteen declared Amendment One unconstitutional pursuant to the Bostic decision on October 14, 2014, but then granted the leaders’ intervention request for purposes of appeal.

They then pursued that appeal until the U.S. Supreme Court ruled in late June, 2015 in Obegefell v. Hodges that marriage bans across the country were unconstitutional.

The cost for that fruitless appeal was $56, 476, but the challengers have agreed to accept $44,501.36.

They are also separately seeking nearly $255,000 from the state for fees and costs incurred as a result of its defense of Amendment One.

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