Same-sex marriage in North Carolina

Same-sex marriage has been legally recognized in the U.S. state of North Carolina since October 10, 2014, when a U.S. District Court judge ruled in General Synod of the United Church of Christ v. Cooper that the state's denial of marriage rights to same-sex couples was unconstitutional. The state's Governor and Attorney General had acknowledged that a recent ruling in the Fourth Circuit Court of Appeals and the U.S. Supreme Court's decision not to hear an appeal in that case established the unconstitutionality of North Carolina's ban on same-sex marriage. State legislators sought without success to intervene in lawsuits to defend the state's ban on same-sex marriage.

Marriage
LGBT portal

North Carolina had previously denied marriage rights to same-sex couples by statute since 1996. A state constitutional amendment that was approved in 2012 reinforced that by defining marriage between a man and a woman as the only valid "domestic legal union" in the state and denying recognition to any similar legal status, such as civil unions.

Some cities in the state recognize domestic partnerships, and some make that status available to both same-sex and opposite-sex couples.

Same-sex marriage

Statute

On June 18, 1996, the North Carolina State Senate passed a bill banning same-sex marriage and recognition of same-sex marriage out of state by a vote of 41–4. That same day, the North Carolina House of Representatives voted 98–10 in favor of the bill. It was ratified and went into effect on June 20, 1996.[1][2][3][4]

Constitution

On September 12, 2011, the North Carolina House of Representatives voted 75–42 in favor of North Carolina Amendment 1, a constitutional amendment banning same-sex marriage and any "domestic legal union."[5][6][7] On September 13, 2011, North Carolina State Senate voted 30–16 in favor of the bill.[8][9] On May 8, 2012, North Carolina voters approved of the amendment by a vote of 61.04% to 38.96%.[10]

The amendment added to Section XIV of the Constitution of North Carolina:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

North Carolina was the 30th state, and the last of the former Confederate states, to adopt a constitutional amendment defining marriage so as to exclude same-sex couples.[11]

Lawsuits

Fisher-Borne v. Smith and Gerber v. Cooper

On June 13, 2012, six same-sex couples filed a federal lawsuit, Fisher-Borne v. Smith, that initially sought the right to obtain stepchild adoptions. In July 2013, following the June U.S. Supreme Court decision in United States v. Windsor, they amended their suit to challenge the constitutionality of the state's denial of marriage rights to same-sex couples.[12] They are represented by the ACLU and private attorneys. Briefing was completed on August 13, 2014.[13] Three same-sex couples filed Gerber v. Cooper in federal court in April 2014 seeking North Carolina's recognition of their marriages, which were established in other jurisdictions. They were represented by the ACLU and private attorneys. Briefing was completed on August 13, 2014.[13] Proceedings in both cases were stayed pending the outcome of a Virginia case, Bostic v. Rainey. The U.S. Supreme Court declined the appeal in that case on October 6, 2014, leaving the Fourth Circuit's decision, which found Virginia's ban on same-sex marriage unconstitutional, as binding precedent on courts in North Carolina.[14]

On October 8, 2014, U.S. District Judge William Osteen lifted those stays and invited plaintiffs' attorneys to present the court with a motion to rule North Carolina's ban on same-sex marriage unconstitutional.[15] The plaintiffs in both cases filed a joint motion asking the court to issue such an order. They modeled their suggested language on the order issued in Bostic.[16]

On October 9, two leaders of the state Legislature, Thom Tillis, Speaker of the House of Representatives, and Phil Berger, President Pro Tempore of the Senate, asked to be allowed to intervene to defend the state's ban.[17] Their filing said: "This intervention is about ensuring that the choice made by North Carolina voters receives its day in Court." They contended that "because Bostic was based in part on outcome-determinative concessions made by the Virginia Attorney General that have not been made in this litigation, Bostic does not control." If the district court determines that Bostic controls the decision in these cases, they proposed to pursue appeals of that judgment to the Fourth Circuit, the Fourth Circuit en banc, and the U.S. Supreme Court.[18] On October 14, Judge Osteen allowed them to intervene solely to preserve their right to appeal.[19] He ruled for the plaintiffs the same day. He found Bostic controlling since North Carolina's and Virginia's bans were virtually identical, held North Carolina's ban unconstitutional, and enjoined the state from enforcing its ban on same-sex marriage.[20]

On December 16, the Fourth Circuit consolidated these cases and put proceedings on hold pending action by the U.S. Supreme Court on cert petitions in DeBoer and related cases. On January 14, 2015, Berger and Tillis petitioned the U.S. Supreme Court to review the case without waiting for review by the Fourth Circuit Court of Appeals.[21]

General Synod of the United Church of Christ v. Cooper

On April 28, 2014, the United Church of Christ, joined by a coalition of Baptists, Lutherans, and Unitarian Universalists, filed a lawsuit,[22] arguing that North Carolina's statute that makes it a crime to preside at the solemnization of the marriage of a couple that lacks a valid state marriage license unconstitutionally restricts religious freedom.[23][24] On June 3, 2014, additional national religious denominations and clergy from across traditions were added as plaintiffs, including the Alliance of Baptists, the Association of Welcoming and Affirming Baptists, and the Central Conference of American Rabbis in addition to Episcopal, Jewish and Baptist clergy.[25] On October 7, the plaintiffs asked for an immediate injunction against the state, citing the Fourth Circuit's ruling in Bostic v. Rainey.[26] On October 10, District Court Judge Max O. Cogburn, Jr. denied a request by leaders of the state Legislature to be allowed to intervene to defend the state's ban and ruled the state's ban on same-sex marriage unconstitutional.[27][28] He wrote:[29]

The issue before this court is neither a political issue nor a moral issue. It is legal issue, and it is clear as a matter of what is now settled law in the Fourth Circuit that North Carolina laws prohibiting same-sex marriage, refusing to recognize same-sex marriages originating elsewhere, and/or threatening to penalize those who would solemnize such marriages, are unconstitutional.

State's defense

On July 28, after the Fourth Circuit Court of Appeals in Bostic v. Schaefer held that Virginia's denial of marriage rights to same-sex couples was unconstitutional, North Carolina Attorney General Roy Cooper announced he would no longer defend the state's ban on same-sex marriage. He said that because all judges in North Carolina were bound by the Fourth Circuit's precedent, "today we know our law will almost surely be overturned as well. Simply put, it's time to stop making arguments we will lose and instead move forward knowing the ultimate resolution will likely come from the United States Supreme Court."[30]

Senate Bill 2
Main article: Senate Bill 2 (North Carolina General Assembly, 2015 Session)

When the decision in General Synod took effect, state officials announced that judges were required to preside at marriage ceremonies for same-sex couples just as they would at those for different-sex couples and that a judge could not claim an exemption on religious grounds.

By early November, six judges had resigned citing religious objections. A group of Republican legislators led by Senate leader Phil Berger announced plans to sponsor legislation creating a religious exemption for state magistrates who object to participating same-sex weddings on religious grounds. Such legislation passed the North Carolina Legislature in May 2015, though was vetoed by Governor Pat McCrory. On 3 June 2015, the North Carolina Senate successfully overrode the Governor's veto by a vote of 32–16, reaching the three-fifths majority needed for overriding a veto in the Senate.[31] An override vote was held in the House of Representatives on 11 June 2015, achieving the three-fifths majority required by a margin of 69–41. As a result, the measure became law in North Carolina, which is just the second state after Utah to allow for this sort of religious exemption for state magistrates.[32]

A lawsuit arguing the exemption is unconstitutional was filed in a federal court on 9 December 2015.[33]

After Obergefell v. Hodges

On April 11, 2017, three Republicans legislators introduced the Uphold Historical Marriage Act to the General Assembly. The bill sought to reenact the state's same-sex marriage ban, thus being in violation of Obergefell v. Hodges, the U.S. Supreme Court ruling which held that same-sex couples have a nationwide fundamental right to marry.[34] The bill claimed the Supreme Court "overstepped its constitutional bounds". It also quoted the Bible, saying "the ruling exceeds the authority of the court relative to the decree of Almighty God that a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh".[35][36] Governor Roy Cooper subsequently announced his opposition to the bill, tweeting "We need more LGBT protections, not fewer." The following day, Speaker of the House Tim Moore denied the bill a hearing, effectively killing it. Moore said that "there are strong constitutional concerns with this legislation given that the U.S. Supreme Court has firmly ruled on the issue."[37]

Domestic partnership
See also: Cities and counties in the United States offering a domestic partnership registry § North Carolina
Map of North Carolina counties and cities that offer domestic partner benefits either county-wide or in particular cities.
  City offers domestic partner benefits
  County-wide partner benefits through domestic partnership
  County or city does not offer domestic partner benefits

Some cities and counties in North Carolina recognize domestic partnerships. Registered domestic partners are legally recognized only by the jurisdiction in which they registered. The partnerships allow the extension of health benefits to employees and their domestic partners. Some cities in the state recognize both same-sex and opposite-sex domestic partnerships. According to 2010 census data, there were 228,000 North Carolina couples in domestic partnerships and 12 percent of those were same-sex couples.[5][38]

The cities and counties in North Carolina with domestic partner registries are:

Carrboro

Since 1994, Carrboro permits domestic partnerships between any two persons who are residents of the town of Carrboro or at least one of whom is an employee of the town of Carrboro.[39]

Chapel Hill

Since 1995, Chapel Hill allows registration of domestic partnerships between any two adults who live together in a long-term relationship of indefinite duration,[40] with an exclusive mutual commitment in which the partners share the necessities of life and are financially interdependent, and also are not married to anyone else, do not have another domestic partner and not related by blood more closely than would bar their marriage in the state.[41]

Durham

In 2003, Durham became the first city to allow domestic partner benefits to employees.[42]

Durham County

In 2003, Durham County became the first county to allow domestic partner benefits to employees.[43]

Orange County

In 2003, Orange County Commissioners approved a measure to extend benefits to domestic partners of county employees.[44] Benefits available include dependent health, dental, life, retiree health insurance, funeral leave, sick leave, shared leave and family leave of absence.[44] The estimated cost for one percent of Orange County (or seven employees) to participate in domestic partner benefits was $17,000 for the county's contribution.[45]

Greensboro

Greensboro began offering domestic-partner benefits in 2007.[46] The City Council was initially concerned that by offering domestic partner benefits they would be in violation of North Carolina's crime against nature law as well as federal equal-protection laws if they offered those benefits to same-sex couples and not unmarried heterosexual couples.[47]

Mecklenburg County

Mecklenburg County passed a policy allowing domestic partner benefits for county employees and their partners in December 2009.[48] The approved plan defines "domestic partners" as two same-sex people in a "spousal like" and "exclusive, mutually committed" relationship in which both "share the necessities of life and are financially interdependent".[49]

Asheville

On February 22, 2011, the City Council of Asheville authorized the creation of a domestic partner registry to recognize same-sex relationships, becoming the first city in Western North Carolina to do so. The registry became available on May 2, 2011.[50]

Charlotte

In 2013, Charlotte created its own domestic partner registry, separate from Mecklenburg County.[51]

Buncombe County

In 2013, Buncombe County became the 4th North Carolina county to allow domestic partnership benefits.[52]

Hospital visitation

In 2008, the North Carolina General Assembly added a provision to the Patients' Bill of Rights, affording hospital visitation rights to same-sex couples though a designated visitor statute.[53]

Public opinion
Public opinion for same-sex marriage in North Carolina
Poll source Date(s)
administered		 Sample
size		 Margin of
error		 % support % opposition % no opinion % refused
Public Religion Research Institute April 5-December 23, 2017 2,499 ? 49% 41% 10% —
American Values Atlas/Public Religion Research Institute May 18, 2016-January 10, 2017 3,544 ? 49% 40% 11% —
American Values Atlas/Public Religion Research Institute April 29, 2015-January 7, 2016 2,855 ? 46% 47% 7% —
Elon University October 21–25, 2014 1,084 adult residents ± 2.98% 42.6% 46.5% 10.2% 0.7%
996 registered voters ± 3.11% 41.7% 47% 10.6% 0.7%
687 likely voters ± 3.74% 38.7% 49.8% 10.8% 0.7%
High Point University October 21–25, 2014 802 ± 3.5% 36% 58% 6% —
New York Times/CBS News/YouGov September 20–October 1, 2014 2002 ± 2.5% 42% 46% 12% —
American Insights September 5–10, 2014 600 registered voters ± 4% 46% 46% 9% —
459 likely voters ± 4.6% 44% 48% 8% —
Elon University September 5–9, 2014 1,078 adult residents ± 2.98% 45.3% 41.8% 12.4% 0.5%
983 registered voters ± 3.13% 45% 41.9% 12.7% 0.4%
629 likely voters ± 3.91% 45.1% 42.5% 11.7% 0.7%
Elon University April 25–28, 2014 672 ± 3.78% 40.7% 46.4% 12.9% —
New York Times/Kaiser Family Foundation April 8–15, 2014 900 registered voters ? 44% 49% 7% —
Public Religion Research Institute April 2, 2014-January 4, 2015 1,864 ± 0.4% 44% 49% 7% —
Public Policy Polling April 3–6, 2014 740 ± 3.6% 40% 53% 7% —
Elon University February 23–26, 2014 925 ± 3.22% 39.7% 51.3% 8.8% 0.2%
Public Religion Research Institute November 12-December 18, 2013 165 ± 8.9% 47% 48% 5% —
Elon University September 13–16, 2013 701 ± 3.7% 42.6% 46.5% 10.9% —
Elon University April 5–9, 2013 770 ± 3.53% 43.2% 45.9% 10.5% 0.5%
Public Policy Polling February 7–10, 2013 600 ± 4% 38% 54% 9% —
Public Policy Polling May 10–13, 2012 666 ± 3.8% 34% 58% 8% —
Public Policy Polling May 5–6, 2012 1,026 ± 3.1% 34% 57% 9% —
Public Policy Polling December 1–4, 2011 865 ± 3.3% 30% 57% 13% —
Public Policy Polling September 1–4, 2011 520 ± 4.3% 31% 61% 8% —
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See also

References
  1. Senate Bill 1487 / S.L. 1995-588 (= H1452) S1
  2. The Bill
  3. North Carolina SB1487
  4. "Chapter 51- Article 1". Archived from the original on April 19, 2012.
  5. Zucchino, David (May 8, 2012). "North Carolina Passes Ban on Gay Marriage". Los Angeles Times. Retrieved May 9, 2012.
  6. "Senate Bill 514 "Defense of Marriage" (Amendment 1)". Archived from the original on April 19, 2012. Retrieved April 23, 2012.
  7. "Marriage Amendment Would Affect Many People, Panel Says". Winston-Salem Journal. Archived from the original on April 20, 2012. Retrieved April 23, 2012.
  8. DEFENSE OF MARRIAGE. 3RD ED.
  9. ROLL CALL Legislative Session Day 97 (09-12-2011)
  10. Weiner, Rachel (May 8, 2012). "North Carolina Passes Gay Marriage Ban Amendment One". The Washington Post. Retrieved September 25, 2019.
  11. "Marriage Amendment passes in North Carolina by double-digits," The McDowell News, mcdowellnews.com, May 9, 2012, accessed May 9, 2012
  12. "Gay marriage cases in 5 states offer broad view". Washington Post. January 16, 2014. Retrieved January 20, 2014.
  13. "Pending Marriage Equality Cases: North Carolina". Retrieved August 24, 2014.
  14. Barnes, Robert (October 6, 2014). "Supreme Court declines to review same-sex marriage cases". Washington Post. Retrieved October 6, 2014.
  15. Blythe, Anne (October 8, 2014). "Federal judge in Greensboro lifts stay on challenges to North Carolina gay marriage ban". News Observer. Retrieved October 8, 2014.
  16. "Plaintiffs' Motion for Judgment, October 8, 2014". Scribd.com. U.S. District Court for the Middle District of North Carolina. Retrieved October 9, 2014.
  17. "Motion to intervene, October 9, 2014". Scribd.com. U.S. District Court for the Middle District of North Carolina. Retrieved October 9, 2014.
  18. "Memo in support of motion to intervene". Scribd.com. U.S. District Court for the Middle District of North Carolina. Retrieved October 9, 2014.
  19. "Order on Intervention". U.S. District Court for the Middle District of North Carolina. Retrieved October 14, 2014.
  20. "Order Enjoining North Carolina from enforcing marriage bans". U.S. District Court for the Middle District of North Carolina. Retrieved October 14, 2014.
  21. "Berger v. Fisher-Borne Petition for writ of certiorari before judgment". Scribd.com. Supreme Court of the United States. Retrieved January 14, 2015.
  22. "General Synod of the United Church of Christ v. Cooper" (PDF). Retrieved June 4, 2014.
  23. "North Carolina's Gay-Marriage Ban Is Challenged by Church". New York Times. Retrieved June 4, 2014.
  24. "Freedom to Marry in North Carolina". Freedom to Marry. Retrieved June 4, 2014.
  25. "Clergy and same-sex couples seek the freedom the marry and religious freedom in North Carolina". Retrieved June 4, 2014.
  26. "Plaintiffs' Brief, October 7, 2014". Scribd.com. U.S. District Court for the Western District of North Carolina. Retrieved October 9, 2014.
  27. "Order denying intervention". Scribd.com. U.S. District Court for the Western District of North Carolina. Retrieved October 10, 2014.
  28. Snow, Justin (October 10, 2014). "Federal judge strikes down North Carolina same-sex marriage ban". Metro Weekly. Retrieved October 10, 2014.
  29. "Memorandum of Decision and Order". Scribd.com. U.S. District Court for the Western District of North Carolina. Retrieved October 19, 2014.
  30. Snow, Justin (July 28, 2014). "Federal appeals court rules Virginia same-sex marriage ban unconstitutional". Metro Weekly. Retrieved July 28, 2014.
  31. "North Carolina Senate overrides governor's veto of marriage opt-out bill". Yahoo News. June 3, 2015.
  32. "House overrides Magistrate same-sex marriage veto". ABC 11 Eyewitness News. June 11, 2015.
  33. Colleen Jenkins (December 9, 2015). "North Carolina sued over gay marriage opt-out law". Reuters. Yahoo! News.
  34. NC H780 | 2017-2018 | Regular Session
  35. North Carolina Lawmakers Introduce Bill to Ban Same-Sex Marriage NBC News
  36. NC House bill seeks to make gay marriage illegal again, defying Supreme Court The News & Observer
  37. House speaker: Gay marriage ban bill going nowhere WRAL
  38. Blades, Meteor. "North Carolina Voters Approve Anti-Marriage Equality Amendment, Until They Learn What It Does". Daily Kos. Retrieved April 23, 2012.
  39. "Carrboro Town Code: Chapter 3" (PDF). Archived from the original (PDF) on April 19, 2012. Retrieved April 23, 2012.
  40. "Town of Chapel Hill: General Policies". Archived from the original on April 19, 2012. Retrieved August 19, 2009.
  41. "Town of Chapel Hill: Domestic Partnership". Archived from the original on April 19, 2012. Retrieved August 19, 2009.
  42. "Durham Votes to Allow Benefits for Domestic Partners". WRAL-TV. April 7, 2003. Archived from the original on April 19, 2012. Retrieved April 23, 2012.
  43. "9:00 A.M. Worksession - Agenda". Durham County Government. September 2, 2003. Retrieved April 4, 2012. In conjunction with the County Attorney's legal opinion that only same-sex domestic partner benefits can be offered to County employees without the violation of the Commissioners' oaths of office, the Human Resources Department has completed the actions necessary to make this offering possible.
  44. "Orange County, NC To Offer Partner Benefits". December 1, 2003. Archived from the original on April 22, 2012. Retrieved April 23, 2012.
  45. "Orange County Commission Agenda Action Items" (PDF). September 21, 2004. Archived (PDF) from the original on April 22, 2012. Retrieved April 23, 2012.
  46. "May North Carolina Local Government Employers Offer Domestic Partner Benefits?" (PDF). University of North Carolina at Chapel Hill. November 2009. Retrieved April 4, 2012. In North Carolina, only Durham and Orange counties, the cities of Durham and Greensboro, and the towns of Chapel Hill and Carrboro offer domestic partner benefits.
  47. "Greensboro To Move Forward on Domestic Partnership Benefits". Archived from the original on April 23, 2012. Retrieved April 23, 2012.
  48. "North Carolina County Passes Domestic Partner Benefits Despite Defamatory Comments from Commissioner Bill James" (PDF). Archived from the original on April 21, 2012. Retrieved April 23, 2012.
  49. Comer, Matt (December 16, 2009). "Mecklenburg Commissioners Approve DP Benefits". Archived from the original on April 21, 2012. Retrieved April 23, 2012.
  50. "Domestic Partner Registry Available May 2". April 27, 2011. Archived from the original on April 19, 2012. Retrieved April 23, 2012.
  51. Charlotte council approves domestic partner benefits, scraps capital plan
  52. "North Carolina Family Policy Council: Buncombe Domestic Partner Benefits". March 22, 2013. Retrieved June 7, 2013.
  53. State ensures gay hospital visitation rights
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