“Liberty Rules…And So Does Love”

On Monday, the U.S. Supreme Court decided not to take action – at least not right now – on the same-sex marriage issue. But that decision actually has major ramifications, nationwide and here in North Carolina, and advocates for same-sex marriage nationwide are rejoicing.

“I was shocked,” said Chapel Hill Mayor Mark Kleinschmidt Monday, “but then seconds later, just overjoyed.”

What the Court did on Monday was to deny cert – that is, to decline to review – five lower-court rulings on same-sex marriage. That means those lower-court rulings are allowed to stand. And each of those rulings struck down a different state’s ban on gay marriage – so by not acting on Monday, the Court effectively legalized same-sex marriage in five different states at once.

Those states are Utah, Oklahoma, Indiana, Wisconsin, and Virginia. The Court’s ruling (or non-ruling) Monday means that same-sex marriage is legal, right now, in all five states.

And that has significant implications for North Carolina. The Virginia ruling came down from the Fourth Circuit Court of Appeals, and North Carolina is in their jurisdiction – which means the Virginia ruling applies to North Carolina as well. There needs to be another court ruling to make that official – but based on the Fourth Circuit’s ruling, our ban on same-sex marriage will be struck down and same-sex marriage will be legal and recognized, perhaps even in a matter of days.

Listen to Mark Kleinschmidt’s conversation with WCHL’s Aaron Keck on Monday afternoon.


“I was as shocked as any Supreme Court watcher was,” says Kleinschmidt, who’s a constitutional attorney and a national advocate for same-sex marriage. Most legal experts assumed that the justices would accept the cases for review, in order to weigh in definitively on the matter. Earlier this summer, though, Justice Ruth Bader Ginsburg said the Court typically wouldn’t hear a case unless there were conflicting rulings from circuit courts – and in this case, every circuit court that’s ruled so far has ruled in favor of same-sex marriage.

There are several circuit courts that haven’t yet weighed in – including the Sixth Circuit, where judges in an oral argument earlier this year seemed more skeptical about the idea that same-sex marriage was constitutionally protected. Monday’s ruling (or non-ruling) doesn’t apply to the states under those courts’ jurisdiction – about 20 states in all. But it does apply to North Carolina, as well as numerous other states – inclding West Virginia, Maryland and South Carolina, which are also under the Fourth Circuit’s jurisdiction.

“There’s a whole lot of celebrating that’s going to go on in North Carolina…and it’s going to happen really big,” says Kleinschmidt. “While marriage is not available on this day at this hour in North Carolina for same-sex couples, it could happen as early as this week…

“Certainly there could be same-sex weddings on Halloween.”

The Fourth Circuit Court’s ruling in Virginia (in a case called Bostic v. Schaefer) doesn’t deal directly with North Carolina, so it will take an additional court ruling to overturn North Carolina’s same-sex marriage ban. But lower courts within the Fourth Circuit are legally bound by the circuit court’s rulings – and while the Bostic case only deals with Virginia’s law, the Fourth Circuit judges declared unequivocally that the “fundamental right to marry” extends to same-sex couples as well as opposite-sex couples.

Read the Fourth Circuit’s ruling in the Bostic case.

Based on that reasoning, it’s a virtual certainty that North Carolina’s ban on same-sex marriage will be overturned. The ACLU of North Carolina has filed a request seeking an immediate ruling to that effect from Chief U.S. District Judge William Osteen, and there are other cases in the legal system as well – including one that Kleinschmidt is working on himself.

“(And) fundamental rights don’t end with just marriage,” Kleinschmidt says, looking forward. “Hopefully we’ll see courts now being able to make sure people don’t get thrown out of their houses and fired from their jobs (for being gay).”

The Supreme Court’s decision not to decide means that the same-sex marriage issue is still not entirely resolved. Another circuit court could still rule the opposite way, and if it does, the Supreme Court may take up the question at a later date.

But for now, proponents of same-sex marriage – like Kleinschmidt – are ecstatic.

“Liberty rules,” he said Monday. “And so does love.”


PPP Poll: NC Voters Becoming More Tolerant of Gay Marriage

Story originally posted April 11, 2014, 4:14 p.m.

Voters in North Carolina are changing their opinions about gay marriage, according to a recent poll released by Public Policy Polling in Raleigh.

According to PPP, 53 percent of voters say that gay marriage should be illegal, while 40 percent say it should be legal.

That’s a 13-point swing from just two years ago, when voters went to the polls and approved Amendment One — which banned gay marriage in the state — by a 22-point margin.

PPP Director Tom Jensen explained the change in attitudes to WCHL.

“We’re really just finding that, as time goes on, both in North Carolina and everywhere, voters are becoming more and more accepting of gay marriage,” he says. “I think they’re more likely to know openly gay people in their lives who help change their minds about the issue.”

In addition, says Jensen, people in North Carolina are being exposed to more positive images of gay people in pop culture and television.

According to Jensen, one set of poll results really illustrates where the direction of public opinion is headed on the issue.
“Among voters under thirty, 62 percent of North Carolinians support gay marriage,” says Jensen. “Only 33 percent are opposed.”

The PPP poll shows that North Carolina voters increasingly believe that gay couples should at least have rights to civil unions.

Sixty-two percent support either marriage or civil unions for same sex-couples to only 34 percent that think same-sex couples should have no legal recognition at all.


Chilton: “I’ll Sign Same-Sex Marriage Licenses”

Former Carrboro mayor Mark Chilton confirmed today that if he’s elected as Orange County Register of Deeds, he will sign same-sex marriage licenses, in defiance of the North Carolina state constitution.

Listen to Chilton’s conversation with WCHL’s Aaron Keck.

Listen here.

In a statement on Facebook, Chilton said that his primary duty as an elected official is to uphold the U.S. Constitution above any state or local statutes that may contradict it – and that North Carolina’s ban on same-sex marriage and civil unions is “clearly contrary” to the federal Constitution, especially in the context of recent Supreme Court and lower-court decisions. (The Supreme Court has not yet weighed in directly on the question of whether the U.S. Constitution guarantees same-sex couples the right to marry, but lower courts in recent months have struck down state-level bans in Virginia, Texas, Kentucky, Oklahoma, Ohio, and Utah, all on constitutional grounds.)

Prior to today, Chilton had declined to say whether or not he’d issue same-sex marriage licenses – saying he preferred to focus on his other qualifications for the job, including an extensive background in real estate. But in an earlier interview, he told WCHL that he would give precedence to the U.S. Constitution above all other laws in his role in the office. “To my way of thinking,” he said last week, “the number one responsibility of all elected officials in North Carolina is to uphold the federal Constitution, above and beyond all other purported laws or constitutions.”

Chilton is one of three candidates for the position; the other two are former deputy Register of Deeds Sara Stephens and current incumbent Deborah B. Brooks. All three are Democrats, so the winner of the Democratic primary on May 6 will be the presumptive winner in the November general election. (Neither Brooks nor Stephens have weighed in definitively yet on the same-sex marriage issue, but Stephens told WCHL, “As Register, I feel it would be my responsibility to take actions within my power to ensure that our office is a friendly and welcoming place to all people.” Brooks has not issued same-sex marriage licenses in her tenure as Register of Deeds.)

Chilton’s full statement is below:

I’ll sign same sex marriage licenses if I am elected Orange County Register of Deeds.

I wasn’t really trying to talk about this issue at first in the Chilton for Register of Deeds race, because my campaign and qualifications for the office run much deeper. But the media keeps asking, so let me say it loud and clear: “Amendment One” is clearly contrary to the United States Constitution.

The Supreme Court’s decision in the Windsor case last year does not answer every remaining question about same sex marriage, but when read in the context of Roemer v. Evans, Perry v. Arnold Schwarzenegger etc., no one can seriously believe that that portion of our state constitution complies with the United States Constitution.

Some will no doubt argue that it is somehow not within the power of a county Register of Deeds to make decisions about the constitutionality of such matters. But let me remind them that the oath of office for all elected officials in North Carolina calls upon the officials to support and maintain the Constitution and laws of the United States, and the Constitution and laws of the State of North Carolina not inconsistent therewith. This oath means three important things in this context:

1. The United States Constitution is the supreme law of the land and no act, statute, ordinance, state constitution, public school rule, city parking ordinance or any other rule or act of any level of government in this country may operate in derogation of the Constitution of the United States of America. That is, we support and maintain the state constitution but only to the extent that it is consistent with the Federal constitution.

2. Because it is a part of the oath of office for all elected officials in North Carolina, it is clear that we all understand that there will continually be moments where an elected official must interpret and apply the United States Constitution – drawing out the distinction between the state and federal constitution actually goes to the very heart of the oath of office.

3. Thus, it is not merely within the power of the Orange County Register of Deeds to interpret the constitutionality of Amendment One, it is the obligation and solemn duty of the Register of Deeds to do so.

In light of all of the above, if I am elected Register of Deeds of Orange County, I will not enforce the federally unconstitutional parts of the North Carolina state statutes and constitutional provisions which purport to prohibit the issuance of same sex marriage certificates.



Gay Marriage Now Legal In MN, RI, And DC

Courtesy of Getty Images

MINNEAPOLIS – Marriage ceremonies started at midnight for gay couples in Minnesota, where same-sex marriage is now legal.

Minnesota officials estimate that about 5,000 gay couples will marry in the first year of the new law.

Laws legalizing same-sex marriage also took effect today in Rhode Island and the District of Columbia.


ACLU To Challenge NC Gay Marriage Ban

Courtesy of Getty Images

DURHAM – Six same-sex North Carolina couples are speaking out not only against the state’s ban on gay marriage, but also on the rights for their children.  According to a WRAL report, the American Civil Liberties Union says it will amend a federal law suit filed last year on behalf of those six couples where one partner wanted to adopt the other’s child.

The ACLU says it plans to launch a challenge to North Carolina’s ban on gay marriage, a ban solidified by an amendment to the state constitution that passed last year that prohibits the legal recognition of unions between same-sex couples.

The ACLU argues that marriage would provide same-sex couples a number of benefits for their children, including health insurance coverage if one parent lacks it, the permission of either parent to make medical decisions or to be by a child’s bedside if hospitalized, and the prevention from children being torn away from their home if something should happen to the biologically or legally recognized parent.

One of the couples in the 2012 lawsuit, Marcie and Chantelle Fisher-Borne, were legally married in Washington, D.C. in 2011 and currently live in Durham.  The couple has two children, a five-year-old girl and a one-year-old boy, each carried by one of the two women.  When their daughter was born, the couple met resistance from a hospital staff member who demanded their legal paperwork—the ACLU argues that encounters like this could be avoided if they were legally married in NC.

WCHL spoke with Chantelle to hear about how NC’s ban affects her family as well as other North Carolina families.

“Having marriage rights for same-sex couples is the best way to provide the safety net for our families, those of us who have kids,” she says.

Chantelle says having the original adoption rights case expand to include the ban on same-sex marriage is an important step, especially given the recent decision of the Supreme Court to declare DOMA unconstitutional.

“(With) lots of changes happening around the conversation of marriage rights, it was the perfect opportunity considering the changes in the laws,” Chantelle says.

And ultimately, Chantelle says she wants the same rights as any other parent who gave birth and raised a child.

“It directly affects any same-sex couple in North Carolina and many states across the US.  Being a legal stranger to your kid who you’ve raised since they were born is disconcerting to say the least, and something we want to change,” says Chantelle.


Duke Law Professor Neil Siegel on DOMA Decision

Photo courtesy of Duke Law.

WASHINGTON, D.C. – The United States Supreme Court ruled Wednesday that a provision of the Defense of Marriage Act that defined marriage at the federal level of only between a man and a woman was unconstitutional.

While professor of law at Duke University, Neil Siegel, says that this ruling was actually expected by many observers of the court, the way in which Justice Anthony Kennedy read for the majority was surprising.

***Listen to the Interview***

“This was first and foremost a decision about equal citizenship stature,” Siegel says. “There was some really striking language here about how the federal law placed same-sex couples in an unstable position of being in a second-tier marriage.”

Siegel says this language was surprising coming from Kennedy because, not only is he a more conservative justice than the court’s four liberal justices who ruled alongside him, but because Kennedy is known to talk more about federalism than equality, as he did during the DOMA case’s oral arguments.

Because same-sex marriage is not recognized in North Carolina, same-sex married couples here still won’t receive the 1,138 federal benefits related to marital status. But although Wednesday’s ruling, and the court’s decision not to hear the case on California’s Proposition 8, does not affect North Carolina now, Siegel says it could lead to change further down the road.

“If you believe in same-sex marriage, you have a litigation advantage now that you didn’t before,” Siegel says. “And if you’re opposed to it, you’re going to have to work hard to distinguish other language in this opinion.”

In the Amendment One ballot initiative on May 8, 2012, North Carolina amended the state’s constitution to say that “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized.”


Prominent Local Residents React To DOMA, Prop 8 Rulings

WASHINGTON, D.C. – The United States Supreme Court ruled that a provision of the Defense of Marriage Act, which recognized marriage at the federal level as only between a man and a woman, is unconstitutional.

The court also decided not to take up California’s Proposition 8 ballot initiative, which banned gay marriage in the state after it was already legal. Its decision not to take up Prop 8 means that the previous ruling in the state, which ruled the initiative unconstitutional, is upheld.

As the decisions were read to the public, speculation began about how the ruling would affect gay and lesbian individuals in North Carolina, including many prominent local figures.

Lydia Lavelle, Carrboro Board of Aldermen member and assistant professor at North Carolina Central University’s School of Law, as well as the first out lesbian to run for Mayor of Carrboro, says that while DOMA is no longer in effect and previous California court rulings that overturned Prop 8 are now overturned, this decision does not immediately affect North Carolinians.

***Listen to the Full Interview***

“Nothing is different in any state where there was not already same-sex marriage,” Lavelle says. “What this is is a victory for those who live in the now-13 states and the District of Columbia where same-sex marriage is allowed.”

Tom Jensen, who has spoken with WCHL numerous times as director of Public Policy Polling, says that, as a gay man, he is happy about the rulings and their impact on the LGBTQ community but is still disappointed that the rulings will not make same-sex marriage legal across the country.

***Listen to the Interview***

“It’s still going to be a while before states like North Carolina get in line, especially when you look at passing Amendment One by a 22-point margin just last year,” Jensen says.

However, Jensen compares recent PPP polls that showed opposition to same-sex marriage leading by 16 points as a sign that North Carolina is gradually getting closer to overturning the marriage ban.

“You also have to have a legislature willing to put Amendment One repeal on the ballot,” Jensen says. “Obviously, this current, very Republican legislature that was responsible for Amendment One in the first place; I’m not sure if they’re going to do that.”

While DOMA, the federal law barring same-sex couples from receiving federal benefits related to marital status, was overturned, same-sex married couples living in states without recognition of their marriage, like North Carolina, would not receive benefits.

Lavelle says that, since marriage had typically been a state issue and the federal government intervened with DOMA, the legal outcome of the court’s ruling will be complicated.

“They intruded a little bit into what was previously states’ rights territory,” Lavelle says. “Now, by pulling that away, but yet it being tied to the way the state defines marriage, it’s going to get a little murkier before it gets clean.”

North Carolina amended the state’s constitution to say that “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized” on May 8, 2012 with passing of Amendment One.


UNC Law Professor Maxine Eichner on Supreme Court’s DOMA/Prop 8 Ruling

WASHINGTON, D.C. – The United States Supreme Court ruled the Defense of Marriage Act unconstitutional in a 5-4 vote Wednesday. DOMA defined marriage at the federal level as only being between a man and a woman, thus barring same-sex married couples from the 1,138 benefits related to marital status.

While the decision does not affect same-sex couples living in states that do not recognize their union, Maxine Eichner, professor of law at UNC-Chapel Hill, says the ruling could be used to build a case for marriage equality in future cases.

***Listen to the Full Interview***

“The language in the decision will provide strong ammunition to challenge bans on same-sex marriage in the remaining states,” Eichner said.

In addition to the DOMA decision, the Supreme Court also ruled in Perry v. Hollingsworth that the defendant in the Prop 8 case did not have proper standing. Therefore, the previous ruling that did have standing in California remains, which ruled Prop 8 unconstitutional.

While the high court’s decision not to rule on the case means that same-sex marriage is now legal in California and does not affect any other states, Eichner says this likely would have been the outcome if the Supreme Court had taken up the case anyway.

“If the Supreme Court ruled on the merits of the Perry case and adopted the rationale of the Ninth Circuit Court of Appeals, it would have said very little about North Carolina,” Eichner said. “Because the Ninth Circuit’s decision in that case was very narrowly based.”

North Carolina amended the state’s constitution to say that “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized” on May 8, 2012 with passing of Amendment One.


SCOTUS Overturns DOMA, Sends Prop 8 Back To CA

Photo courtesy of Getty Images

WASHINGTON, D.C. – The Supreme Court of the United States ended its 2012-2013 session with rulings that the Defense of Marriage Act  is unconstitutional and sent California’s Proposition 8 back to the state courts. It ruled that the defendants in the Prop 8 case did not have proper standing, and thus the issue is sent back to the California courts.

DOMA was a 1996 law barring couples in same-sex marriages from the 1,138 benefits related to marital status, such as federal work benefits, tax deductions and pension benefits.

Speaking for the 5-4 majority, Supreme Court Justice Anthony Kennedy said that creating different rights for different married couples was a violation the Fifth Amendment’s equal liberty.

However, benefits would only be available to same-sex couples living in states where same-sex marriage is recognized. For example, a couple married in Massachusetts could not collect federal marriage benefits in North Carolina.

In the Prop 8 case, the ballot measure was defended by ProtectMarriage.com and not the state of California itself.

Speaking for the 5-4 majority, Supreme Court Chief Justice John Roberts said that the private organization lacked standing and therefore the court could not rule on the case.

Now Prop 8 goes back to the last ruling in California to have the proper parties representing both sides. In that case, federal judge Vaughn Walker struck down Prop 8 as unconstitutional.

There are differing conclusions in California as to whether same-sex marriage is legal in the state again, but the city attorney of San Francisco has already said that he is planning to enforce same-sex marriages throughout the state if any county office tries to block it.

Congressman David Price on SCOTUS Rulings

“Today’s historic Supreme Court rulings affirms that we have nothing to lose, and everything to gain, from extending liberty and equality to all our citizens. The so-called Defense of Marriage Act denied millions of Americans equality under the law and access to federal benefits. I continue to believe that no one should be denied a chance at the happiness—or the rights and responsibilities—that marriage brings. Although many states continue to treat same-sex couples as second class citizens, it is clear that equal protection under the law for all Americans is only a matter of time and that history will judge these efforts at discrimination harshly. Today’s rulings are a victory for all who believe in an America that does not discriminate on the basis of race, gender, age religion or sexual orientation.”


God Save us from the Biblical Marriage Ideal

Gay marriage a deviation from the biblical ideal? Really? Read the Bible. The biblical ideal of marriage is one man, lots of wives, concubines, bride prices and arranged marriages. Is this what we are defending?

If our society’s ideas of marriage have changed, why are some so intent on returning to the past? The past is not what I want to return to.

If our legislature wants to do something to defend marriage, can we not do something about the 50 % divorce rate? My concern is less the parents than the kids who now have to live with a lower standard of living, less well supervised, in two separate household, often with confusing and conflict-filled relationships. That’s a problem I’d like to see tackled. That is what I think of when I think of the benefits of defending marriage.

In reading this suggestion, do you think: How can we dissuade people from digging in and making a marriage work when they have decided it won’t? The heart is a mysterious thing. From the earliest history parents and other authority figures have tried to control who people love and marry. Great literature is written about the failure to control who people fall in love with and how they fall out of love.

We should remember this when considering marriage between adults. Let us accept this mystery and support its success.