It was perhaps fitting that the first decision by a federal appeals court striking down a southern state’s same-sex marriage ban came from an unlikely pair – two men in their sixties, one a white former South Carolina lawyer with conservative backing and the other appointed by former President Bill Clinton in 2001 to be the first African-American to serve on the 4th U.S. Circuit Court of Appeals.
“Poetic,” attorney Chris Brook called it. Brook is the legal director for the American Civil Liberties Union of North Carolina and represents couples in two federal court actions challenging the state’s ban.
“The fact that white and African-American Southern gentlemen came together to push us a step closer to marriage equality is some testament to the progress we continue to make,” he said.
But Monday’s decision by Circuit Judges Henry F. Floyd and Roger Gregory in Bostic v. Schaeffer, rejecting Virginia’s same-sex marriage ban, speaks as much to the role courts play in even the most intimate aspects of people’s lives as it does to the rapidly changing landscape of marriage equality across the country.
And it was not a given.
Following oral argument in May, court-watchers and commentators predicted that Gregory would rule as he did, but cast Floyd as an uncertain swingman.
Floyd took the lead, though, writing an opinion which, absent a Supreme Court decision to the contrary, turns the tide on marriage rights in each of the five states in the circuit.
“Civil marriage is one of the cornerstones of our way of life,” Floyd wrote. “It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”
With that, Chris Brook said yesterday at a press conference, the days of North Carolina’s same-sex marriage bans are numbered.
North Carolina had already long-banned same-sex marriage when lawmakers rushed a constitutional amendment through the General Assembly in September 2011– without public debate — getting that amendment on the ballot for voter approval in May 2012.
Republican leaders voiced concerns that “activist judges” might overturn the existing state ban and wanted the extra protection that an amendment legitimizing only marriages between men and women would bring.
“Moms and dads are not interchangeable,” state Sen. James Forrester said at the time. “Two dads don’t make a mom. Two moms don’t make a dad. Children need both a father and a mother.”
Others, including Rep. Paul “Skip” Stam, feared an influx of gay couples legally married elsewhere.
“They’re going to bring with them their same-sex marriages and they’re going to want to get divorced and have child custody issues … and we’re not equipped to handle them,” Stam said on the House floor.
North Carolina voters subsequently approved that amendment by a considerable margin in May 2012.
But courts elsewhere had already begun overturning marriage bans, and in June 2013, the U.S. Supreme Court weighed in on the subject, ruling in U.S. v. Windsor that provisions of the federal Defense of Marriage Act defining marriage as only between a man and a woman were unconstitutional.
Since then, every federal district court to consider a challenge to a state’s same-sex marriage ban has struck it down, as have two federal appeals courts – the 10th U.S. Circuit Court of Appeals in June (concerning Utah and Oklahoma laws) and the 4th Circuit on Monday.
Utah has since announced that it will seek U.S. Supreme Court review of the 10th Circuit decision.
And twenty states, plus the District of Columbia, now allow same-sex marriage.
Public opinion has likewise shifted.
Nationwide, a solid majority of Americans now approve of same-sex marriage, and in North Carolina, nearly two-thirds of voters polled in April support either marriage or civil unions for same sex couples.
Just hours after the Fourth Circuit decision came down, North Carolina Attorney General Roy Cooper took to the podium and announced that his office would no longer defend state laws banning same-sex marriage.
The appeals court had spoken, Cooper said, and its decision now governed in court challenges to the state’s bans.
“It’s time to stop making arguments we will lose,” he added.
Not surprisingly, House Speaker Thom Tillis and Senate President Pro Tem Phil Berger derided Cooper for taking that stance.
“North Carolinians overwhelmingly voted to put the marriage amendment into our state constitution and expect their attorney general to uphold his oath of office by defending that constitution,” Berger said.
But neither indicated that they’d be jumping into pending lawsuits to defend the state bans, as they’ve done in cases challenging other state laws, such as school vouchers or the “Choose Life” license plates– at least not yet.
Although the Bostic decision marked a turning point in the marriage equality conversation here, it’s unlikely that clerks will be issuing licenses to same-sex couples until judgment comes in the cases pending in North Carolina’s federal courts.
There are four working their way through the judicial system; each has been stalled in recent months pending the federal appeals court decision:
Fisher-Borne v. Smith, filed in Greensboro by the ACLU-NC in July 2013 on behalf of six families headed by same-sex couples, as an amendment to a 2012 lawsuit challenging North Carolina’s ban on second parent adoptions.
Gerber v. Cooper, also filed in Greensboro by ACLU-NC in April 2014 on behalf of three married, same-sex couples seeking state recognition of their marriages.
General Synod of the United Church of Christ v. Cooper, filed in federal court in Charlotte on behalf of same-sex couples and four national religious denominations – the United Church of Christ, the Alliance of Baptists, the Association of Welcoming and Affirming Baptists and the Central Conference of American Rabbis – in addition to Episcopalian, Jewish and Baptist clergy from across North Carolina. The same-sex couples are seeking the freedom to marry and the clergy are seeking the religious freedom to perform wedding ceremonies for such couples.
McCrory v. Cooper, filed in March in federal court in Asheville by two women who’ve been together for more than 25 years and were legally married in New York in 2013.
Attorneys for the couples in those cases will now ask the court to move quickly to judgment based upon the Bostic decision, especially for those whose medical conditions make a state-recognized marriage critical.
In Fisher-Borne, for example, a young child of one of the plaintiff couples there is 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.
But to some extent courts here may be hamstrung, given that Bostic still needs to work its way to finality, possibly with a Supreme Court decision next year.
Governor Pat McCrory has asked state attorneys to seek a continued stay in the actions while that happens.
Attorneys for couples in each of the actions remain hopeful though that relief may come sooner.
According to Jacob Sussman, lead counsel for plaintiffs in General Synod and partner at Tin Fulton Walker & Owen, the Attorney General’s admission that no arguments remained to defend the state’s bans was reason enough for the courts to move swiftly toward relief.
“Our clients are grievously harmed – as are all North Carolinians – each day the fundamental right to marry is withheld,” he said.
“There’s no reason to delay and there’s no time to lose,” Chris Brook added.