Wait & See

Published 8:54 am Thursday, October 9, 2014

RALEIGH – With a deadline looming on overturning North Carolina’s ban on allowing gays to wed, the state’s Attorney General is advising Register of Deeds offices in all 100 counties to be prepared to issue marriage licenses to same-sex couples.

Meanwhile, the state’s two top legislative branch leaders, House Speaker Thom Tillis and Senate Pro Tem Phil Berger, said in a press release earlier this week they will formally intervene to defend an amendment to the North Carolina Constitution that defines marriage as between one man and one woman. That amendment was approved by a majority vote (61.04% in favor; 38.96% opposed) during a referendum held as part of the May 8, 2012 Primary Election.

Prior to the passage of the amendment, North Carolina already had a law on the books defining marriage as between one man and one woman.

That law and the constitutional amendment are now being put to the test.

In July, the 4th U.S. Circuit Court of Appeals struck down Virginia’s ban on same-sex marriage. The 2-1 ruling upheld a previous decision issued earlier this year by a Virginia district court, which struck down that state’s ban on gay marriages.

In addition to Virginia, the 4th Circuit’s jurisdiction includes South Carolina, North Carolina, and West Virginia, all of which have or had gay marriage bans in place.

Last week, Chief U.S. District Judge William L. Osteen of Greensboro told lawyers that since the U.S. Supreme Court refused to hear appeals on the 4th Circuit Court ruling, they needed to submit briefs within 10 days on how to move forward in overturning North Carolina’s ban.

Even though that 10-day period is nearly over and it’s extremely likely that Osteen will follow the July ruling from the 4th U.S. Circuit Court of Appeals, Register of Deeds offices in the Roanoke-Chowan say for now it’s business as usual.

“When I was elected I took an oath to uphold the United States Constitution and North Carolina Constitution,” said Melanie Storey, Hertford County Register of Deeds. “Until either or both (Constitutions) change in regard to allowing same-sex couples to apply for and receive a marriage license, I’m bound by my oath to follow the law. I do not make the law; I follow the law.”

Northampton County’s veteran Register of Deeds, Pauline Deloatch, said she received a recent email from North Carolina Attorney General Roy Cooper, advising her that he expects a ruling from a federal judge striking down the state’s ban on same-sex marriages “relatively soon.”

“We’re just waiting to see what will happen after that 10 day period is up. Since we’re under the jurisdiction of the 4th Circuit Court, we have to abide by that ruling if we are so ordered,” Deloatch said.

While the legal wrangling goes back and forth, a professor of Public Law and Government at the University of North Carolina at Chapel Hill’s School of Government told the 100 Register of Deeds gathered for their 2014 annual conference that North Carolina is not a party to the Fourth Circuit case and the Supreme Court’s decision (not to hear appeals) does not have any immediate binding effect on ROD’s in the Tar Heel State.

Professor Charles Szypszak said there are several pending cases in North Carolina and some Register of Deeds across the state are parties to lawsuits filed by same-sex couples applying for, but being denied, a marriage license.

He stated that a North Carolina court may apply the Fourth Circuit’s decision and issue a ruling that North Carolina’s same-sex marriage ban is unconstitutional.

“If the court in which you are appearing issues an order, you must comply with it and you should consult your legal counsel (attorney for the local government entity) about what the order means,” Szypszak said. “It could order you as a party to start issuing marriage licenses regardless of gender, and if you did not want to comply with that order your counsel would have to ask the court or the Fourth Circuit to put the order on hold.  You would decide with your counsel whether you want to do anything other than comply without challenge.”

Szypszak again stressed to Register of Deeds across the state that they are not bound to follow a trial court’s decision in a case in which they are not a party.

“It is appropriate for you to consider whether in carrying out your duties you should continue to apply a restriction in a North Carolina state law if a court declares it to be unconstitutional,” he added. “You might consider, for example, that a same-sex couple who wants a marriage license could file a legal action against a register who refuses to issue one. You would have the right to appeal any decision directly involving you through the courts.  You should consider what is best for your county, and consult with your county leadership and attorney.”

Another item of interest as it applies to applying for a marriage license, the form currently in use across the state includes the notation: Male Applicant; Female Applicant.

Szypszak suggested that in the event that the court orders North Carolina ROD’s to issue a marriage license to a same-sex couple, the form will have to be altered in a “reasonable way with respect to gender.”

Storey said the NC Department of Vital Records in Raleigh, which issues marriage certificate applications, is monitoring the court proceedings and will not make a decision on developing a gender neutral form until the final outcome of the court proceedings.

About Cal Bryant

Cal Bryant, a 40-year veteran of the newspaper industry, serves as the Editor at Roanoke-Chowan Publications, publishers of the Roanoke-Chowan News-Herald, Gates County Index, and Front Porch Living magazine.

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