Federal judge strikes down NC's constitutional ban on gay marriage

North Carolina's constitutional ban on gay marriage is no more — giving same-sex couples statewide the freedom to marry immediately and securing legal recognition for gay couples married outside the state.

A federal judge in Asheville ruled today that the ban, known as Amendment One, is unconstitutional. The decision came on the heels of a week of legal tumult surrounding gay marriage in the state.

“This is a historic day for freedom and equality in North Carolina,” said Jennifer Rudinger, executive director of the N.C. American Civil Liberties Union, who has helped spearhead the legal campaign against the state's ban. "For countless couples and their children, this victory is nothing short of life changing.”

North Carolina has become the 29th state, plus Washington, D.C., to allow gay marriage nationwide.

Deborah Brook, Orange County's register of deeds, said on Wednesday that the office would be prepared to issue same-sex marriage licenses as soon as the ban was struck down.

Ellen Gerber and Pearl Berlin, one of the couples involved in the ACLU's lawsuits challenging North Carolina's ban, expressed relief that the ban has finally met its end.

"We've been together for 48 years and are so happy that our love and commitment will now finally be recognized in the state we call home," Gerber said.

A week in wait

LGBT advocates statewide have been keeping a close eye on the North Carolina courts since Monday, when the U.S. Supreme Court declined to review five cases striking down gay marriage bans, allowing those rulings to stand.

One of them concerned Virginia's ban, which was ruled unconstitutional in July by the 4th U.S. Circuit Court of Appeals. As North Carolina falls under the jurisdiction of the 4th Circuit, the Virginia ruling set a legally binding precedent in North Carolina.

The Supreme Court's move made gay marriage legal in Indiana, Utah, Oklahoma, Virginia and Wisconsin, and impacted six other states, including North Carolina, in those circuits.

On Wednesday, a federal judge in Greensboro then lifted stays on the N.C. ACLU's two gay marriage lawsuits — prompting hope for a quick ruling on the state's ban.

Nationwide, several other states experienced immediate ripple effects from the court's decision. South Carolina courts began issuing marriage licenses on Wednesday, though they were halted by the state attorney general.

Legal experts weigh in

N.C. General Assembly leaders had tried this week to stop the ban from being overturned — Speaker of the House Thom Tillis and Senate Leader Phil Berger spoke in support of Amendment One and asked a federal judge in Greensboro on Thursday for permission to intervene in the state's gay marriage cases.

But their efforts would likely have been futile, according to legal experts.

One of the arguments Tillis and Berger had made, said UNC law professor Victor Flatt, was that the North Carolina ban’s fate should not be determined by the ruling in the Virginia case “because Virginia’s attorney general did not vigorously enforce the ban.”

"The state of North Carolina had already agreed that the ban was identical to Virginia’s and should be governed by the outcome in that case,” Flatt said in an email. “If (Tillis and Berger) believed that it was not the same, the legislature should have moved earlier to make this claim in court.”

Maxine Eichner, a law professor at UNC, said she was surprised today’s ruling came from a case in Asheville, which involved the First Amendment's establishment clause. The 4th Circuit's July decision was based on claims that the same-sex marriage ban violated the 14th Amendment's due process and equal protection clauses.

But in light of the decision reached in the Asheville case, she said the chances of the state legislature being able to intervene at this point are only a theoretical possibility.

“It’s a theoretical issue, but not really a practical issue,” she said. “In terms of what will practically happen, it’s over. Amendment One is struck down.”

Chris Sgro, executive director of Equality N.C., said members of the organization will be present at register of deeds offices statewide today to support same-sex couples as they obtain their long-awaited marriage licenses.

"With it, we celebrate with so many North Carolinians who have worked tirelessly over decades to change hearts, minds, and unequal laws in the state we call home. Love won and the barriers to it are done," he said.

Staff writer Tat'yana Berdan contributed reporting.

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