North Carolina joins front line in gay marriage fight

By Michael Gordon, mgordon@charlotteobserver.com
Originally published by The Charlotte Observer: Tuesday, Jul. 09, 2013

North Carolina – along with a Charlotte couple and their children – joined the front line Tuesday in a national challenge to same-sex marriage bans, the first stage in a legal strategy to rocket the issue back before the U.S. Supreme Court.

The American Civil Liberties Union formally challenged the marriage bans in North Carolina and Pennsylvania, and the group says it plans to file a lawsuit soon to add Virginia as a defendant.

The goal: Build on the momentum from the Supreme Court ruling on June 26 that overrode the federal ban on gay marriage, citing the damage such laws have on families and children. Eventually, gay-marriage supporters hope to force the nation’s highest court to decide if same-sex marriage, now recognized in 13 states, should be a guaranteed right for all.

In North Carolina, the ACLU intends to fold its challenge of the 2012 marriage amendment into its existing federal lawsuit against the state’s ban of so-called “second parent adoptions.” Under state law, a partner in a same-sex union cannot legally adopt the other partner’s biological or adopted children.

Chris Brook, legal director of the ACLU of North Carolina Legal Foundation, said the state’s gay-marriage ban is as destructive to same-sex families as the state’s adoption laws.

“Marriage gives families the tools and security to build a life together and protect their children,” Brook said Tuesday.

The move jibes neatly with the Supreme Court’s decision last month. Writing for the majority, Justice Anthony Kennedy said the federal ban on same-sex marriage “demeans” gay couples, “humiliates tens of thousands of children” being raised in same-sex households, “and makes it even more difficult for the children to understand the integrity and closeness of their own family.”

Holning Lau, president of the state ACLU and a UNC law professor specializing in constitutional issues related to families, described the N.C. case as “a natural extension” of Kennedy’s opinion.

“Our clients want to get married,” Lau said. “Opponents of same-sex marriage have always rooted their opposition out of concern for children, that legalizing same-sex marriage is bad for children. But the court said the opposite. The absence of marriage equality harms children.”

The Rev. Mark Harris of Charlotte said the family-based arguments now emanating from same-sex marriage supporters come from “a very different perspective than what I hold and that the vast majority of North Carolinians hold.”

“Every child needs a mother and a father. Children flourish when they have a mom and a dad,” said Harris, pastor of First Baptist Church of Charlotte and president of the State Baptist Convention.

“North Carolina, with a 61 percent vote, had one of the strongest marriage amendments in the country put on the books, and that was just 14 months ago.”

The ACLU has asked Attorney General Roy Cooper, whose office is representing the state in the adoption case, to allow the gay-marriage challenge to be added to the adoption complaint. If he refuses, the ACLU will petition the court directly.

Tuesday afternoon, a spokeswoman for Cooper said attorneys with his office were working to get a copy of the ACLU request and had no other comment.

Charlotteans Lee Knight Caffery and Dana Draa are among six same-sex couples serving as plaintiffs in the adoption case. Caffery is 38 and an attorney. Draa is 43 and an Operation Desert Storm veteran who now works for the Veterans Administration. In 2007, they held a commitment ceremony, which is not recognized by the state, and are raising two children, ages 2 and 4. Caffery carried them both. Draa has no custody rights.

“We’d have been married yesterday if we could do it,” Caffery said Tuesday. “Marriage gives us the security of family – the four of us, together, to know we have the peace of mind that we are legally recognized as a family.”

Multi-state challenges

In the aftermath of the Supreme Court’s DOMA decision, legal experts in North Carolina and across the country said Justice Kennedy’s opinion invited new challenges to gay-marriage bans nationwide.

In addition to the three announced by the ACLU Tuesday, groups in at least five other states have now launched them.

Charlotte attorney John Gresham of Tin Fulton Walker & Owen said his firm has been considering litigation since the Supreme Court decision, and is still deciding the best case to bring.

“This action by the ACLU is one we’ll have to discuss with them and other national groups that have been interested in filing litigation in North Carolina,” he said.

In Pennsylvania, the ACLU represents 10 couples, the children of one of the couples and the widow of a longtime same-sex union and the children.

In North Carolina, the adoption case includes a plaintiffs’ list of families that seems tailor-made to the high court’s ruling.

Three states – New Jersey, Hawaii and Illinois – could be the next states to approve gay marriage. Opponents hope Indiana will become the 30th state to ban it.

“Our challenge is to let the court see that they’re not going to get away with this without a massive public revolt,” Frank Schubert, political director of the National Organization for Marriage told the New York Times.

The ACLU’s Brook said broadening the challenge to several states puts cases in different U.S. court districts. That could reduce the time it takes to get the marriage issue back to the Supreme Court, he said.

Harris, who is considering a run for the U.S. Senate, said North Carolinians should hold the line. As he tours the state to decide his candidacy, Harris said the defense of traditional marriage remains a pressing issue for voters.

“It’s my hope that Attorney General Roy Cooper will recognize his responsibility to support and defend the state constitution, and that this won’t go any further,” Harris said. “The will of the voters was very clear.”

Caffery said the Supreme Court decision gave Draa and her some reason to be legally married in a same-sex state, in hopes that they would qualify for certain federal marriage benefits.

But North Carolina is the couple’s home, she said, and both women have grown particularly close to their minister, Jay Leach of Unitarian-Universalist Church of Charlotte.

“We very much want to do this at home,” she said. “We very much want Jay to marry us, in North Carolina, before our friends and our families and our kids. We don’t want to go some place else.”

— Researcher Maria David contributed.