NC gay marriage ban’s fate unclear

In the last month, two states’ constitutional bans on same-sex marriage have been ruled unconstitutional by a federal judge.

But the consequences for North Carolina’s own constitutional same-sex marriage ban remain unknown.

Last month, N.C. Senate President Pro Tempore Phil Berger and House Speaker Thom Tillis released a statement announcing they had retained legal counsel to help them defend North Carolina’s gay marriage ban.

And other states are bracing for policy change as court decisions continue to unfold.

A federal judge struck down Oklahoma’s gay marriage ban Tuesday, about a month after Utah’s ban was ruled unconstitutional — one of the latest in a tidal wave of decisions nationwide, said Jen Jones, spokeswoman for Equality N.C., an LGBT rights group.

In the Utah case, the federal judge cited the invalidation of the federal Defense of Marriage Act.

Still, legal complications persist. Although more than 1,000 Utah couples rushed to get married after the ban was reversed, they soon found their unions in legal limbo as the Supreme Court temporarily blocked further marriages.

Last week, U.S. Attorney General Eric Holder said those marriages are legal under federal law.

Maxine Eichner, a UNC law professor, said while the state could see results similar to Utah, it is not guaranteed.

“Federal district court could evaluate (North Carolina’s ban) the same way Utah did, but it depends very much on the judge before whom the challenge is filed,” she said.

She said the DOMA decision doesn’t demand courts to strike down state bans, but some of its language could allow courts to reach that result.

Neil Siegel, a Duke University law professor, said the DOMA ruling was deliberately ambiguous, and the national conversation concerning gay marriage is evolving.

“The court is in conversation with the country,” he said. “I think it wants to encourage more litigation and more deliberation.”

Jones said nationwide support for gay marriage is gaining traction.

“It’s exciting that these decisions are happening … in these unlikely places, from New Mexico to Utah to even Iowa — places that aren’t exactly bastions of progressive politics,” she said.

Jones said the national attention surrounding the issue will force the Supreme Court to take action.

“It’s not just the freedom to marry and relationship recognitions that are at stake at this point,” she said. “State agencies started to provide health benefits, and there were also tax implications.”

Jones said some states with gay marriage bans, like Missouri, are allowing same-sex couples to file joint taxes, and that Gov. Pat McCrory is being urged to do this.

Jones said though North Carolina’s ban is facing challenges now, it could be years before there are any results.

Jones said DOMA has paved the way for broad legalization of gay marriage, which she thinks is inevitable.

“It’s not an if, it’s a when,” she said.

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