Amendment One Lawsuit Seeks Religious Liberty

By Danny Hooley Posted May 22, 2014 at 11:03 pm

Attorney Mark Kleinschmidt, who also happens to be the mayor of Chapel Hill, is representing a local church in a lawsuit against Amendment 1.

The amendment bans gay marriage in North Carolina, and the United Church of Christ calls that a violation of religious liberty.

“We did the analysis,” says Kleinschmidt, “and it became very clear that this is a violation, not only of the equal protection clause and due process clause of the U.S. Constitution, but also the First Amendment.”

Kleinschmidt says that he and his law partners at Tin Fulton Walker & Owen had been talking for a long time about challenging Amendment One, and were encouraged by the success of similar challenges across the country.

Along the way, he and his partners became interested in helping churches that wanted to support their LGBT congregants.

As reported recently in Chapel Hill News, Kleinschmidt is representing the United Church of Christ, as well as many individuals and pastors that are going to court to challenge Amendment One, on the grounds that it violates the religious liberty of faith communities that wish to celebrate same-sex unions.

There are two other challenges to the gay-marriage ban in North Carolina. But the one Kleinschmidt is working on, which was filed April 28 in Charlotte, is the only one that mentions religious freedom.

The ACLU has filed two federal lawsuits in Greensboro. The first one started as a challenge to adoption policies, and then expanded to an Amendment One challenge after the U.S. Supreme Court struck down the Defense of Marriage Act.

The second ACLU lawsuit is on behalf of families with pressing medical needs who are denied medical-related privileges that married people receive.

“I think it’s important for the community and the people of North Carolina to understand just how broad an impact this is having – not only on LGBT people, but on faith communities, and the ability of couples to be able to access benefits. And also, the children who are part of same-sex families.”

Like many opponents of Amendment One, Kleinschmidt sees a domino effect happening in federal courts, and it makes him feel hopeful for North Carolina.

“If you read some of these decisions that have come down, even just this week, in Pennsylvania and Oregon,” says Kleinschmidt, you have strong language that describes what the promise of our Constitution is to the people of this country; and what damage follows when the state tries to limit access to the rights of the Constitution.”

He says that seeing such arguments articulated by judges in Idaho, Utah and Oklahoma — in places he would not have expected – could cause many people to stop and reflect on their own attitudes.

Kleinschmidt says he can’t imagine Amendment One passing with as much ease if it were on the ballot today.

In a way, he says, that’s already a victory.

“As an attorney, you want to be able to secure the rights for your client that they are due under the Constitution,” says Kleinschmidt.

“But you also want them to be able to move on when the litigation’s over, and live in a community that respects their pursuit of their rights, and respects their exercise of their rights.”

That’s a slower and more difficult process than the law, says Kleinschmidt, because it means appealing to hearts as well as minds.

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