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North Carolina Clergy Files First-of-its-Kind Lawsuit Challenging State's Gay Marriage Ban

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BY LISA KEEN

In a first of its kind lawsuit, a group of ministers filed a complaint in federal court Monday against North Carolina’s ban on marriage for same-sex couples, saying that the law’s penalties against clergy who conduct ceremonies for same-sex marriages violates their free exercise of religion.

UccThe lawsuit, United Church of Christ v. Cooper, was organized by the United Church of Christ and filed in the U.S. District Court for the Western District of North Carolina, in Charlotte. The UCC is a mainline Protestant denomination with an estimated one million members across the country.

The lawsuit challenges all North Carolina laws that define marriage as exclusively for opposite-sex couples, as well as the state’s “Marriage Laws” that “preclude—through the imposition of criminal penalties and otherwise— religious ministers, clergy, or anyone else from performing a ceremony of marriage for same-sex couples, thereby preventing couples in those congregations from freely participating in such religious ceremonies.”

The plaintiffs include UCC, clergy plaintiffs, and same-sex couple plaintiffs.

“Under North Carolina law, the Clergy Plaintiffs are prohibited under threat of criminal prosecution from performing any such religious ceremonies, and the Couple Plaintiffs are prohibited from becoming married in the tradition of their respective faiths. Such laws,” stated the lawsuit, “violate the First Amendment’s Free Exercise Clause.”

R_cooperThe lawsuit also claims the ban violates the First Amendment right to expressive association of all plaintiffs and, for couple plaintiffs, the constitutional rights to equal protection of the law and due process. It asks the district court to issue both a preliminary and permanent injunction against North Carolina Attorney General Roy Cooper (right) and other state defendants to stop enforcement of the law.

Evan Wolfson, head of the national Freedom to Marry group, notes that North Carolina’s ban goes farther than most state bans by “actually criminalizing” a religious ceremony for a same-sex couple.

“In their zeal to withhold marriage from gay couples in North Carolina,” said Wolfson, “officials not only pushed a discriminatory constitutional amendment, but further piled on -- actually criminalizing clergy marrying couples within their own religious beliefs. The intent was to chill houses of worship from celebrating love in their own faith, and crossed the line in violating religious freedom on top of violating the constitutional guarantee of the freedom to marry.”
Jon Davidson, legal director for Lambda Legal, called the lawsuit “particularly promising” because of the criminalization aspect.

North Carolina makes it a misdemeanor for a “minister, officer or any other person authorized to solemnize a marriage” under North Carolina law to marry a couple without them having obtained a marriage license, which same-sex couples cannot obtain from the state.

“If this provision applies to purely religious marriage ceremonies, as opposed to only civil marriages solemnized by clergy,” said Davidson, “I believe it would violate the religious freedom guarantee of the First Amendment.”

States law can define who can get married and who cannot. Many states, for instance, ban marriage between first cousins. They justify such bans by pointing to scientific studies that indicate an increased risk for producing children with birth defects. But states with bans on same-sex marriages have had a hard time justifying them, and courts have routinely found their explanations unconvincing. Most lawsuits challenging state bans on allowing same-sex couples to marry argue that the bans are driven by a desire to discriminate against LGBT people.

Gary Buseck, legal director for Gay & Lesbian Advocates & Defenders, said the religious arguments in support of allowing same-sex couples to marry “have been floating around for some years and have been laid out to some extent in amicus briefs in some cases.” But he says the UCC case may not move far at all simply because there are cases further along in the Fourth Circuit U.S. Court of Appeals, which includes North Carolina.

The Fourth Circuit will hear arguments May 13 in Bostic v. Schaefer, a case being led by the legal team of Ted Olson and David Boies. Lambda Legal and the ACLU have become intervenors in that case because they have a similar one in Virginia, too.

Geoffrey_blackRev. Geoffrey A. Black, general minister and president of the UCC, said his denomination is “proud to defend the religious freedoms upon which this nation was founded.”

Meanwhile, North Carolina Attorney General Roy Cooper had until Monday to respond to a request in an ACLU-led lawsuit, Fisher-Borne v. Smith, on behalf of six couples. The request is seeking a preliminary injunction and expedited review to allow a lesbian couple’s marriage in Massachusetts be recognized in North Carolina to secure health coverage for their child with cerebral palsy.

Cooper filed a brief Monday opposing the request, calling it an “extraordinary step” that would, in essence, undo the North Carolina law. The brief says the harm that might be experienced by the couple and their child is “outweighed by the harm to the public if State officials are enjoined from enforcing the democratically ratified State laws and Constitution.”

“To alter the definition of marriage, by means of injunctive relief granted prior to this court’s ruling on State Defendants’ pending dispositive motions, prior to the final determination of this action on merits, and prior to the Fourth Circuit’s and the United States Supreme Court’s guidance on this important social issue,” wrote Cooper, “is not in keeping with the applicable jurisprudence or the Supreme Court’s preferred deliberative process. [Plaintiffs’] motion should be denied on this basis alone.”

The response was likely a surprise to some, given that Cooper, a Democrat, has expressed his opposition to the ban on same-sex marriage. But he has also vowed to enforce the law as long as it’s on the books. Local papers have reported for months that Cooper is expected to be a candidate for governor in 2016.

The ACLU has until May 5 to reply to Cooper’s response.

© 2014 Keen News Service. All rights reserved.


Tuesday Speed Read: Chuck Hagel, Human Rights Charter, North Carolina, Tennessee, Michigan, Boy Scouts

BY LISA KEEN / Keen News Service

DOD SIGNS MORE INCLUSIVE CHARTER: Hagel

Secretary of Defense Chuck Hagel signed a “Human Goals Charter” Monday. “By signing this charter today,” said Hagel during the ceremony, “DOD’s civilian and military leaders commit ourselves – all of us – to making DOD a model for equal opportunity and [fair treatment] for all. …As the charter says, we will continue striving to make military service a model – a model of equal opportunity for all, regardless of race, color, sex, religion, sexual orientation, or national origin.” SPART*A, an LGBT military organization, called the addition of “sexual orientation” to the charter a welcome “symbolic gesture” but only a “first step.” "The next logical step,” said SPART*A Policy Director Allyson Robinson, “is to amend related DoD directives to add sexual orientation to military equal opportunity and non-discrimination policies; only then will gay and lesbian service members be protected.” SPART*A noted that sexual orientation was added to the Human Goals Charter for DOD’s civilian force in 1998.

CHURCH CHALLENGE: Ucc

In a first of its kind lawsuit, a group of ministers filed a complaint in federal court Monday against North Carolina’s ban on marriage for same-sex couples, saying that the law’s penalties against clergy who conduct ceremonies for same-sex marriages violates their free exercise of religion. The lawsuit, United Church of Christ v. Cooper, was organized by the United Church of Christ and filed in the U.S. District Court for the Western District of North Carolina, in Charlotte. Jon Davidson, legal director for Lambda Legal, called the lawsuit “particularly promising” because North Carolina law makes it a misdemeanor for a “minister, officer or any other person authorized to solemnize a marriage” under North Carolina law to marry a couple without them having obtained a marriage license, which same-sex couples cannot obtain from the state.

N.C. AG OPPOSES RELIEF: R_cooper

The Democratic attorney general of North Carolina, Roy Cooper, filed a brief in another marriage equality lawsuit Monday, opposing a request to recognize a lesbian couple’s marriage in Massachusetts on an expedited basis to secure health coverage for their sick child. In the ACLU-led lawsuit, Fisher-Borne v. Smith, Cooper said the potential harm for the family is “outweighed by the harm to the public if State officials are enjoined from enforcing the democratically ratified State laws and Constitution.”

APPEALS COURT GRANTS STAY:

A three-judge panel of the Sixth Circuit U.S. Court of Appeals April 5 granted Tennessee’s request for a stay of a district court judge’s ruling. District Court Judge Aleta Trauger denied the request for a stay on a narrow and temporary order she issued in Tanco v. Haslam in March requiring the state to recognize the marriage licenses of three same-sex couples who obtained marriage licenses out of state. The panel granted the stay and ordered that a hearing by a panel of the appeals court should be scheduled “without delay” to hear the merits of the state’s appeal.

AND ‘NO’ TO SKIPPING A STEP:

The Sixth Circuit U.S. Court of Appeals also issued an order Monday, denying the state of Michigan’s request to skip over a three-judge panel and go straight to the full appeals court with its appeal of a district court ruling that its ban on same-sex marriages is unconstitutional. The one-page order stated simply that “no judge of this court” voted to send the case directly to the full bench.

BOSTON GLOBE ON BOYS SCOUTS:

A Boston Globe editorial Monday characterized the Boy Scouts of America policy banning gay scout leaders as “stuck in the past” and said “the organization itself exists in a 1950s time warp….[where] there are no merit badges for inclusiveness….”

© 2014 Keen News Service. All rights reserved.


United Church of Christ and 12 Clergy File Suit Challenging North Carolina's Gay Marriage Ban

UccThe United Church of Christ, 12 clergy members, and a group of gay couples have filed suit challenging North Carolina's ban on same-sex marriage, the AP reports:

The clergy members say they would like to perform same-sex marriage ceremonies in their congregations, but can't because of the law. The lawsuit filed Monday in federal court in Charlotte includes a dozen clergy members and the United Church of Christ, which has more than 1 million members.

Their attorney, Jake Sussman, says the lawsuit opens a new front in marriage equality litigation. The Rev. J. Bennett Guess says the ban has made is difficult for clergy members to marry same-sex couples: If they do, they know they'll be breaking the law.

The Washington Blade has more: Hoffman

The lawsuit — which was filed in U.S. District Court for the Western District of North Carolina — argues the marriage amendment violates the religious beliefs of denominations and congregants who support the recognition of gay nuptials and clergy who want to perform them. Rev. Geoffrey A. Black, president of the United Church of Christ, and Rev. Nancy Kraft of Holy Trinity Lutheran Church in Charlotte are among the plaintiffs who attended a Charlotte press conference.

“As a senior minister, I am often asked to perform marriage ceremonies for same-sex couples in my congregation,” said Rev. Joe Hoffman (pictured) of First Congregational United Church of Christ in Asheville, who is a plaintiff along with Diane Ansley and Cathy McGaughey, two of his congregants who have been together for 14 years. “My denomination — the United Church of Christ — authorizes me to perform these ceremonies, but Amendment One denies my religious freedom by prohibiting me from exercising this right.”

A lawsuit is already underway in North Carolina, filed earlier this month by the ACLU.


North Carolina Teen Booted From Prom For Wearing Pants: VIDEO

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Cherryville High School senior Shafer Rupard got booted from her prom at the Cherryville Golf & County Club in North Carolina when a teacher told her that she was forbidden from wearing pants.

Instead of wearing a dress, Rupard showed up in a cap, black dress shirt, leather jacket and bright red pants. She got to spend five minutes at the prom before being forced to leave.

Rupard’s mother met with the school’s assistant principal to look over the student code of conduct, prom invitation and dress code — none of them mentioned a ban on women wearing pants at prom.

"It's just the way she's always been and she wanted to feel comfortable in her own skin," said Rupard’s mother Shawn McQuaige. "We want to put out the message to all teenagers that you should be allowed to be yourself," said her mother.

Rupard has yet to receive an apology or an explanation from her school.

Watch the newscast AFTER THE JUMP

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Thursday Speed Read: North Carolina, Nate Silver, Rosemary Lehmberg, Brunei, Ohio, Oklahoma

BY LISA KEEN / Keen News Service

TENTH CIRCUIT HEARS SECOND CASE:

OklahomaThe same three-judge panel that heard the lawsuit challenging Utah’s ban on recognition of same-sex marriages today hears a lawsuit challenging Oklahoma’s. Jim Campbell, legal counsel from the Alliance Defending Freedom, a conservative legal group that has been opposing same-sex marriage, will argue for Oklahoma. Don Holladay, counsel with Holladay & Chilton in Oklahoma City, will argue for the plaintiffs.  Argument begins at 1:30 MDT at the Denver federal courthouse. Each side will get 15 minutes. Audio recordings of the proceedings will be available on the court’s website within 24 hours of adjournment.

U.N. ADMONISHES BRUNEI STONING LAW:

BruneiThe United Nations’ Office of High Commissioner for Human Rights issued a statement April 11 admonishing the southeast Asian nation of Brunei for revising its penal code to require stoning to death any person convicted of sodomy and other sexually related offenses. The revised code goes into effect April 22. U.N. spokesman Rupert Colville said the revised code “may encourage further violence and discrimination against women and also against people on the basis of sexual orientation.”

OHIO JUDGE SPLITS THE STAY:

U.S. District Court Judge Timothy Black did as he said he might: He ordered the state of Ohio Wednesday to include the names of both same-sex parents on the birth certificates of children born and adopted to four same-sex couples in a lawsuit challenging the state’s ban on same-sex marriages. But he stayed his ruling that the state ban on recognizing marriages of same-sex couples is unconstitutional. The stay will remain pending review by the Sixth Circuit U.S. Court of Appeals. The case, Henry v. Wymyslo, was led by civil rights attorney-activist Al Gerhardstein in Cincinnati.

DON’T MESS WITH ANYBODY IN TEXAS:

LehmbergTexas Republican Governor Rick Perry is into a big-time scrap with lesbian Travis County District Attorney Rosemary Lehmberg, a Democrat. Lehmberg, who’s gay, is the top prosecutorial officer for Travis County –the same county that runs the state’s Public Integrity Unit which is charged with investigating wrongdoing by state officials. She’s credited with convicting U.S. House Republican Majority Leader Tom DeLay in 2010 for money laundering (a case now on appeal to the state’s high court for criminal appeals). But Lehmberg ran into trouble last April when police found her drunk and behind the wheel of a car in a church parking lot. Lehmberg acknowledged guilt, apologized, spent three weeks in jail, and entered a treatment program. But she refused calls from Perry and other Republican leaders to resign. Perry then claimed Lehmberg had “lost the public’s confidence” and vetoed funding for her Public Integrity budget. Texans for Public Justice, a political watchdog group, charged that Perry is breaking the law by trying to coerce Lehmberg’s resignation. And this week, a Texas judge seated a grand jury to look into those allegations. Perry has reported hired a defense attorney.

THE SILVER FORECAST:

SilverOpenly gay political data cruncher Nate Silver yesterday echoed predictions that are being heard more and more frequently these days: Republicans appear poised to take over the Senate in the mid-term elections this November. Silver’s latest model “puts Democratic losses in the Senate at 6.8 seats….”

NORTH CAROLINA SOFTENS:

A poll this month in North Carolina indicates opposition to same-sex couples marrying has softened by eight points in the past two years. In May 2012, 61 percent of voters said yes to a ban on same-sex couples marrying. But a Public Policy Polling survey taken April 3-6 of 740 registered voters found only 53 percent still oppose same-sex marriage.

© 2014 Keen News Service. All rights reserved.


'We Don't Have Time To Wait' Says 78-Year-Old Plaintiff in New NC Marriage Lawsuit

Gerber

The ACLU, the ACLU of North Carolina Legal Foundation and the law firms of Sullivan & Cromwell LLP and Ellis & Winters LLP have filed a new suit in federal court on behalf of three married, same-sex couples in North Carolina seeking state recognition of their marriages.

The News-Record reports:

“We don’t have time to wait,” said High Point resident Ellen “Lennie” Gerber, 78, one of the plaintiffs in the suit. “Pearl is 89 and frail. We’ve been treated nicely in High Point, but what if we call 911 in another city? What if I’m not allowed to be there? It would be beyond intolerable if that should happen.”

Gerber and Pearl Berlin have been together for 48 years, and married legally last year in Maine. But a hospital could deny Gerber visitation rights because she is not legally recognized as a family member or next of kin in North Carolina.

The ACLU announced yesterday in a press release:

The ACLU has also sought immediate relief on behalf of one of the couples in the existing Fisher-Borne et al. v. Smith case who have a young child who is being denied critical medical care because North Carolina neither recognizes his mothers' marriage nor allows both mothers to adopt their child and establish a legal relationship.

The ACLU has also sought immediate relief on behalf of one of the couples in the existing Fisher-Borne et al. v. Smith case who have a young child who is being denied critical medical care because North Carolina neither recognizes his mothers' marriage nor allows both mothers to adopt their child and establish a legal relationship.

North Carolina's ban on marriage for same-sex couples prevents the plaintiff couples from securing hundreds of protections provided in both state and federal law to married couples. If one member of the couple were to die before the state recognizes their marriage, the surviving spouse will be forever denied not only these protections but the dignity that respect from the state affords, such as having one's relationship acknowledged forever on a death certificate.

The new case is Gerber and Berlin v. Cooper. The ACLU has more information on the plaintiffs HERE.

Watch a report from the News-Record, HERE.


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