An Asheville official is pushing the margins of North Carolina law in an attempt to allow same-sex marriages.
Last week, Buncombe County Register of Deeds Drew Reisinger accepted marriage license applications from 10 same-sex couples, but he is waiting to approve the licenses until he gets substantive legal feedback on questions he sent to the North Carolina Attorney General’s office. N.C. Amendment One, passed in May 2012, bans same-sex marriages in the state. But in the wake of the U.S. Supreme Court’s Defense of Marriage Act decision in June, Reisinger feels that there is a lack of clarity regarding the constitutionality of Amendment One.
“Since the Supreme Court struck down the Defense of Marriage Act, it threw a lot of questions up into to the air,” Reisinger said. “It’s no longer a black and white issue as to whether or not it’s legal for the state of North Carolina to be denying same-sex couples marriage licenses.”
The Supreme Court case in question, United States v. Windsor, struck down a federal definition of marriage as between one man and one woman on the grounds that the definition violated the due process and equal protection rights of same-sex couples. At the moment, the decision only applies to federal laws. The American Civil Liberties Union of North Carolina is currently challenging the constitutionality of Amendment One.
Reisinger, who is personally in favor of legal same-sex marriage, sent a letter Oct. 14 to the office of North Carolina Attorney General Roy Cooper asking a series of questions about the legality of Amendment One, including whether it violated the Fifth Amendment of the U.S. Constitution. Cooper’s office did not respond to Reisinger’s specific questions, but did say that under current state law, “issuance of a marriage license to a same-sex couple would be a violation of the law.”
Cooper has publicly declared his support for legalizing same-sex marriage, but also pledged to defend the state law.
For now, Resinger will hold on to the couples’ marriage licenses until there are further legal developments.
Brenda Clark, who filed a Buncombe County marriage application with her partner Carol McCrory, expressed her frustration with the way in which the applications have been handled by Cooper and the Attorney General’s office.
“I’m really disappointed,” she said. “Drew’s questions were very clear.”
Clark also expressed frustration that Cooper himself did not respond to Reisinger. Instead, the response came from Chief Deputy Attorney General Grayson Kelley.
More broadly, Clark said that she does not feel that her rights are respected as long as Amendment One stands. For example, Clark and McCrory cannot file joint taxes, even if they get married in another state.
“I believed when Amendment One in North Carolina was proposed that it was against the United States Constitution,” Clark said. “And I still strongly believe that.”
Clark and McCrory will travel to New York, where same-sex marriage licenses are issued, to get married this week.
Officials in other states, including Pennsylvania Attorney General Kathleen Kane and New Jersey Governor Chris Christie, have refused to defend state laws banning same-sex marriage.
Technically, Reisinger could approve the marriage licenses, but the state of North Carolina could take legal action, said Neil Siegel, David W. Ichel professor of law and professor of political science.
Reisinger feels, however, that he would need legal approval from the Attorney General’s office in order to approve the licenses that he has under consideration.
“Our Attorney General is the chief legal advisor for the state of North Carolina, and in my opinion when there’s a matter of how to proceed, he’s the person we would go to on an issue like this,” Reisinger said. “If he were to say that it was unconstitutional for me to deny licenses to same-sex couples, I would have gladly granted them.”
Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, helped to arrange for the same-sex couples in Buncombe County to submit their licenses. She said she empathized with Cooper, who is bound to enforce a law that he does not support, but hoped that Cooper would take another look at the legality of Amendment One.
Beach-Ferrara said that as far as she knows, this is the first time that same-sex marriage licenses have been accepted by a local official in the South.
“We were very encouraged to see [Cooper] come out and express his public support for marriage equality and we’re hopeful that this presents a reason for him to take a fresh look at the legal questions before him,” Beach-Ferrara said. “The legal landscape around LGBT rights is changing so quickly on a national level.”
The legal path forward on Amendment One is not a straightforward issue, however. Siegel said the time it would take for the ACLU case to make its way through the federal court system is unclear.
It is also unclear as to whether Cooper could declare Amendment One unconstitutional if he decided to do so without that decision being challenged and reversed in court, Seigel said.
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