ACLU files new challenge to North Carolina gay marriage ban


The civil rights group said it was seeking to speed up a decision in lawsuit filed in 2012 by citing the urgent health needs of a child who suffers from cerebral palsy who was adopted by one of the lesbian couples involved in the case. The ACLU also filed a new lawsuit on behalf of three other lesbian couples struggling with health conditions made more difficult because they lack legal recognition of their marriages performed in other states, said ACLU staff attorney Elizabeth Gill.

The ACLU and the same-sex couples they represent argue a judge should act quickly to suspend North Carolina's marriage ban because they are suffering immediate and irreparable harm.

"The plaintiffs that we're representing and talking about today really have urgent harms," Gill said.

Wednesday's action is patterned in part on an Ohio case that sought to force the state's recognition on death certificates of out-of-state gay marriages, Gill said. That case involved a couple married in Maryland after one man was diagnosed as terminally ill with Lou Gehrig's disease. The judge ruled in December that Ohio should recognize gay spouses on death certificates. The same judge then said earlier this month he will rule that Ohio must recognize out-of-state gay marriages

Seventeen states allow gay marriage and federal judges have struck down bans in Michigan, Utah, Texas, Oklahoma and Virginia. The Virginia ruling declaring that state's voter-approved prohibition on same-sex marriage unconstitutional is scheduled for argument next month before a federal appeals court in Richmond, Va. That court's decision also could extend to North Carolina's ban.

The ACLU's request in both North Carolina lawsuits for a preliminary injunction suspending the state's marriage ban appears designed to speed up an initial court ruling from a judge who has seemed to delay a decision, University of North Carolina law professor Maxine Eichner said.

NC Values Coalition executive director Tami Fitzgerald, who helped lead a coalition of Christian and conservative groups supporting the state's 2012 constitutional amendment, said the ACLU's moves attempt to void the will of voters who backed traditional marriage. Six in 10 voters backed changing North Carolina's constitution.

"While we sympathize with these individuals about their poor health, that is not a reason to re-define marriage," Fitzgerald said in a statement. "When courts mandate marriage redefinition in conflict with the will of a majority of the people, they disenfranchise millions of voters, shatter the foundations of American government, and threaten liberties of speech, religion, and even thought."

The day after North Carolina became the 30th and latest state to write a gay-marriage ban into its constitution, President Barack Obama said he supported gay marriage. Since then, its acceptance has become more prevalent.

The main post chapel at Fort Bragg, home of the Army's 82nd Airborne Division and the Green Berets, in December celebrated a same-sex marriage ceremony made possible by the 2011 repeal of the military's "don't ask, don't tell" policy. In January, Blue Cross and Blue Shield of North Carolina reversed an earlier decision to cancel family coverage sold to same-sex couples.

Attorney General Roy Cooper's office had no immediate response to the ACLU's filings Wednesday. Though other Democratic attorneys general have opted not to defend similar bans after the U.S. Supreme Court last year struck down part of the federal anti-gay-marriage law, Cooper's office continues to represent the state in the case, said spokeswoman Noelle Talley.

The plaintiffs in the new lawsuit include retired lawyer Ellen Gerber, 78, of High Point, and her partner of 47 years, retired professor Pearl Berlin. They were legally married in Maine last September and celebrated a traditional Jewish ceremony with family and friends three months earlier in Greensboro, the lawsuit said.

Berlin, 89, suffers from partial seizures which require medication that makes her weak and prone to falls. The women fear being denied access and decision-making ability for their spouse during a health crisis, the lawsuit said. But their greatest dread is a death certificate or obituary that ignores their long and loving lives together, Gerber said.

"At the worst time in my life there would be that big slap in the face," she said. "These are the kind of things that are very, very scary. More so than anything else."

Wednesday evening, Jere Royall, the counsel for the North Carolina Family Policy Council, released this statement to ABC11: "The role of the court is to determine whether there is a rational basis for our laws defining marriage as only the union of one man and one woman, and all of history -- including thousands of studies over decades -- has shown that the best environment for raising children is with their married father and mother.

"While not every married couple has children, every child is created through the union of their father and mother, and changing the institution of marriage would automatically deny many children of either their father or their mother."

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