Constitutional gay marriage ban may not afford state legal cover

Jul. 30, 2014 @ 09:24 AM

It appears that a federal court is making what seemed like a legal buttress against gay marriage in North Carolina a moot point.

More than two years ago, state voters overwhelmingly approved what became known as Amendment One — a ban on gay marriage in the state Constitution.
The state already had a law against gay marriage passed by the N.C. General Assembly 20 years ago. But advocates for Amendment One said the ban needed to be codified in the state Constitution to provide greater protection for exclusive marriage between one man and one woman. The measure passed in May 2012 with 61 percent of the vote.
Whether that ban will stand now seems in question.
On Monday, the U.S. Fourth Circuit Court of Appeals overturned Virginia’s ban on gay marriage, which was placed in the Virginia Constitution by voters there eight years ago. The federal court ruled that provisions of the U.S. Constitution and a U.S. Supreme Court ruling last year trump state rules on gay marriage, even in state constitutions. 
Advocates for gay marriage say it’s just a matter of time before ongoing challenges to Amendment One are overturned in the federal courts, since North Carolina cases are taken up by the Fourth Circuit Court of Appeals that invalidated Virginia’s ban.
In the Virginia decision, the appellate justices acknowledged that gay marriage "makes some people deeply uncomfortable." But the court ruled that the concerns are "not legitimate bases for denying same-sex couples due process and equal protection of the laws."
One of the justices noted that bans on gay marriage in North and South Carolina and West Virginia are similar to Virginia’s prohibition, said Suzanne Reynolds, an executive associate dean with the Wake Forest University School of Law.
“Judges in federal courts in those states should feel bound by this opinion to conclude that the bans in those states are also unconstitutional," Reynolds told The High Point Enterprise.
The state chapter of the American Civil Liberties Union is asking for “swift action” on its legal challenges to the gay marriage ban in North Carolina.
"Both public opinion and the legal landscape have shifted dramatically since the passage of Amendment One more than two years ago,” said Mike Meno, communications director for the state ACLU chapter. “Not only has public opinion moved steadily in favor of the freedom to marry, but the U.S. Supreme Court's ruling last year in United States v. Windsor established the legal precedent that has led to nearly 30 court rulings finding bans on marriage for same-sex couples to be unconstitutional.”
A group that opposes gay marriage expressed outrage about the appellate court ruling.
The court has “erroneously found a ‘fundamental right’ to same-sex marriage, thus overriding the will of the people of Virginia, who voted to pass their marriage amendment by 57 percent to 43 percent,” said Tami Fitzgerald, executive director of the North Carolina Values Coalition.
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