On Oct. 15, 2013, my partner Brenda and I applied for a marriage license in Asheville, N.C. We have been together for 25 years. It was our fourth time applying, and every other time we had been rejected. But this time, before we walked up to the counter, we knew in advance that Drew Reisinger, Register of Deeds, planned to accept our application. He would accept it and send it on to Attorney General Roy Cooper for final approval. We also knew that it was unlikely to be approved. We realized that we would be the first same-sex couple in North Carolina to get this far. We did not know that we would be the first in the entire South. There has been a lot of speculation about why we put ourselves out there so publicly, knowing what would likely follow. Here is the reason.
We will win. Ultimately, North Carolina and the other Southern states will lose this battle, and we will win. Someday we will get married in this state, in the presence of our children and grandchildren, and become full and equal citizens. We will win because the law is on our side. We will win because morality is on our side. We will win because fairness and common decency are on our side. Unfortunately, North Carolina will waste countless resources defending a lawsuit that it cannot win at a time when its economy is failing. We will win because under the U.S. Constitution, and given the recently decided U.S. Supreme Court case striking down a key section of the federal Defense of Marriage Act (DOMA), we cannot lose.
The Supreme Court has held that same-sex marriage ought to be given recognition and validity under the law. The United States v. Windsor case (popularly known as the DOMA case) recognized that limiting lawful marriage to heterosexual couples is an unjust exclusion from the ordinary benefits of citizenship.
As of this writing, 13 states and the District of Columbia have decided that same-sex couples should have the right to marry and live with pride in themselves and their union and in a status of equality with all other married persons.
North Carolina's decision to give same-sex couples fewer rights than it grants to heterosexual couples confers upon those excluded couples a designation of second-class citizenship. The state requires these couples to pay the same taxes as those who enjoy first-class citizenship and imposes other burdens of citizenship but denies them the privileges and benefits of citizenship. Whenever a state purposefully sets out to create two classes of citizenship, with the second-class subordinate to the first, it creates a system of social stratification that violates the Constitution.
By creating this two-tier form of citizenship, North Carolina has violated both basic due process and equal protection principles. The U.S. Supreme Court held in Department of Agriculture v. Moreno (1973) that the Constitution's guarantee of equality must, at the very least, mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. It is clear that by denying same-sex couples basic fundamental rights (such as the right to marry and form a family), the state has expressed a "desire to harm a politically unpopular group." The principal purpose of Amendment One was to impose state-sanctioned inequality; there was no other compelling governmental purpose, such as efficiency.
This disparity demeans LGBT citizens, whose moral and sexual choices are protected under the landmark holding in Lawrence v. Texas (2003), and whose relationship the state ought to dignify. In addition, it humiliates tens of thousands of children now being raised by same-sex couples. Amendment One makes it difficult for children to understand the integrity and closeness of their own family and its similarity to other families in their community and in their daily lives.
Under North Carolina law, even legally married (in other states) same-sex couples have their lives burdened, by reason of government decree, in visible and public ways.
The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying any person the equal protection of the laws. While the Fifth Amendment itself prohibits government from degrading or demeaning its citizens in ways that Amendment One does, the equal protection guarantee of the Fourteenth Amendment makes the Fifth Amendment right all the more specific and all the better understood and preserved.
Additionally, under the Windsor case, we know that same-sex couples in North Carolina, who were legally married in other states, have been specifically targeted for discrimination by their state. North Carolina refuses to acknowledge a status that the federal government recognizes and finds to be proper. North Carolina instructs all state officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriages are less worthy than the marriages of others. While governments can discriminate against their citizens when there is a legitimate governmental purpose, no such purpose can overcome an action that specifically targets a class of people. By treating same-sex couples as less-than-equal, North Carolina violates the Fifth Amendment.
In the Windsor decision, the Supreme Court described the way in which the U.S. Constitution trumps the North Carolina Constitution under the principal of federal preemption. The Supremacy Clause of the United States Constitution (Article VI, clause 2) tells us that when state law and the Constitution conflict, state law is invalidated. The power of the United States Constitution grants, but it also restrains. And though states have great authority to design laws to fit their own concept of sound policy, they cannot deny the liberty protected by the Fifth Amendment.
We applied for a marriage license in North Carolina because we believe we are entitled to the same benefits and privileges that other citizens enjoy. We believe our family is entitled to the same validity that other families automatically receive. It is as simple as that. North Carolina Attorney General Roy Cooper has acknowledged that he believes in marriage equality. Brenda and I are proud to be able to offer him the opportunity to combine that personal belief with public action. He can approve it now, or approve it later; marriage equality is coming to North Carolina. With the Windsor case we now have four linked Supreme Court opinions including Moreno, Loving v. Virginia, and Lawrence, that provide a blueprint for all lawsuits to follow. Instead of litigating a case that the state cannot win, why don't we do what is right and just and simply let our application proceed?