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by Jeff Sykes

Same-sex marriage rights on the horizon following court actions

jeff@yesweekly.com | @jeffreysykes

The headlines were confusing at first, causing some to get the wrong message.

“Supreme Court denies gay marriage appeals” read one headline moving across the wire, and thus the web and all its social media confusion. Some reacted in angst, feeling that the moment advocates of same-sex marriage had been waiting for had been delayed yet again.

More legally inclined pundits, however, knew at once that when the Supreme Court declined Monday to review appellate court decisions finding same-sex marriage bans in five states unconstitutional, the arc of the moral universe had just taken a great leap forward.

It happened swiftly on the first day of the court’s fall session. By stamping “denied” on the requests for appeal, the court essentially affirmed the decisions from the lower courts, including one from Virginia that had made its way through the Fourth Circuit Court of Appeals in Richmond.

That decision, handed down in July, struck down Virginia’s prohibition of gay marriage. Following the Supreme Court’s refusal to overturn the decision, Virginia’s attorney general announced that same-sex marriage licenses would be issued beginning at 1 p.m. on Monday.

Because North Carolina is under the jurisdiction of the Fourth Circuit Court of Appeals, the decision will become law once a judge is forced to rule on one of the many challenges to this state’s constitutional ban on same-sex marriage, which voters passed with about 60 percent support in a ballot referendum in May 2012.

The ACLU of NC has two such challenges before federal district court judges. Middle District Court Judge William Osteen in Greensboro requested Monday that parties in both lawsuits file briefs within 10 days, clarifying how the Virginia case law would apply here.

“In light of the parties’ prior briefings, it would appear Plaintiffs are entitled to an order granting the pending motions for preliminary injunction as to this issue now that the Fourth Circuit has issued its mandate,” Osteen wrote.

The parties in two of the legal challenges have previously agreed that the outcome of the Virginia case would constitute a “binding precedent” on North Carolina’s marriage laws. The state defendants have argued that the Fourth Circuit’s decision “would likely control the analysis of North Carolina’s marriage laws.”

The plaintiffs have made similar arguments.

“The Virginia ban declared unconstitutional in Bostic is indistinguishable from the North Carolina prohibitions challenged in this matter …”

Osteen wrote that the last two issues to be resolved are exactly what actions his court would need to take moving forward and how to resolve the legal issues regarding second parent adoption that have been challenged.

Many expect him to rule swiftly at the end of the 10-day period.

“The Supreme Court’s decision means that the freedom to marry for same-sex couples must be recognized here in North Carolina without delay,” said Chris Brook, legal director of the American Civil Liberties Union (ACLU) of North Carolina. “We are asking the district court here in North Carolina to immediately issue a ruling striking down North Carolina’s unconstitutional and discriminatory ban on marriage for same-sex couples.

Every day that gay and lesbian couples in North Carolina are denied the ability to marry the person they love places their families and children in legal and financial jeopardy. The time has come to end this unfair treatment once and for all and to let our American values of freedom and equality apply to all couples.”

North Carolina Gov. Pat McCrory said on Monday that his legal advisors had counseled him that same-sex marriage was inevitable within a short period of time. Attorney General Roy Cooper has already said he would no longer defend the state’s constitutional amendment defining marriage as between one man and one woman. But Republican legislative leaders remained intransigent on the issue, with Sen. Phil Berger and House Speaker Thom Tillis issuing a terse statement.

“The people of North Carolina have spoken, and while the Supreme Court has not issued a definitive ruling on the issue of traditional marriage, we are hopeful they will soon,” said Tillis and Berger. “Until then, we will vigorously defend the values of our state and the will of more than 60 percent of North Carolina voters who made it clear that marriage is between one man and one woman.”

One government official who will deal with the procedural realities of same-sex marriage is already preparing for the inevitable. Guilford County Register of Deeds Jeff Thigpen said his office is preparing to provide a high quality of service to same-sex couples once Judge Osteen makes his decision known.

Thigpen said that a handful of registers across the state had already asked the state Department of Health and Human Services to provide updated marriage license forms.

“We know they have them, we just need to get them so that once a judge issues a decision we can transition,” Thigpen said.

Thigpen has been in the unique position of being a supporter of same-sex marriage rights and a defendant in the ACLU-backed lawsuits due to his oath of office to defend the state’s constitution.

“I think we are all in a space of living history right now,” Thigpen said during a phone interview Tuesday. “I feel grateful that we’re able to live out our constitutional values in terms of the law applying equally to everyone as it relates to marriage.”

Thigpen said he hoped that people on both sides of the issue would allow for a period of healing and understanding once the constitutionality of same-sex marriage is determined in North Carolina.

“My hope will be that as a community, state and nation that we continue to respect the fact that we have differences,” Thigpen said. “At the same time, applying the laws equally, it can become a foundation where we enter a new phase in terms of this kind of issue, that has on many levels been one of division. My hope will be that going forward we act in ways that will be a calling to our highest ideals as a people.”

On a pragmatic level, Thigpen said North Carolina had a chance to show leadership in making the transition smoothly. He noted that officials in Virginia were caught unprepared when the ruling came down on Monday.

Thigpen asked for people interested in obtaining a license for same-sex marriage in Guilford County to contact him personally so that he could begin to plan for a reality that could come about as early as next week. He said he was unsure exactly how many marriages might be waiting in the wings.

He came to work Monday morning feeling that same-sex marriage was coming down the road eventually.

“After 10 a.m. I knew this was outside looking for a place to park and would be up here in a few minutes,” Thigpen said. “We are trying to just make sure we are prepared.”

Thigpen said anyone interested in obtaining a license for same-sex marriage can call him at 336-451-5300 or email jthigpe@co.guilford.nc.us.

“I need to know. I want to know,” Thigpen said about the number of potential same-sex marriage licenses he may issue once a ruling is made. “We want to serve anyone that is inter- ested.” !

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