Every night before bedtime, Shana Carignan goes through a special ritual with her six-year-old son, Jax. "Arright buddy, you know the drill! We’re going to have to giggle, get the bubbles out, right?," she says.
Jax has such severe cerebral palsy that he has to be fed using a tube that connects through his belly button. But before his supplement can be pushed into his stomach, Jax must laugh in order to force pockets of gas to bubble up through the tube. So Carignan and her partner, Megan Parker, tickle him: "So now we do get the bubbles out, get the bubbles out! Goodness, get 'em out. Breathe, take a breath! Yeah, there we go, there’s the other one, see all his bubbles come out?"
But Jax, who has huge chocolate colored eyes and a big smile, isn’t Carignan’s legal son. Parker adopted him and is his only legal parent. (North Carolina doesn’t allow what’s called second-parent adoption, which would enable both members of an unmarried couple to adopt a child.) The two are now part of a lawsuit that will challenge the ban on gay marriage.
Carignan and Parker did get legally married in Massachusetts a few years ago, but that union isn’t recognized in North Carolina, where a constitutional amendment bans same-sex marriage. Still, Carignan and Parker have been hopeful ever since two district court judges in Utah and Oklahoma ruled against those state’s constitutional bans prohibiting same-sex marriage.
Just before Christmas, a federal district court judge in Utah overturned that state’s constitutional ban against same-sex marriage. Last month, a district court judge in Oklahoma did the same. Both cases are being appealed. The anti-discrimination argument in the U.S. Supreme Court’s ruling in the DOMA case this summer has strengthened other lawsuits that also seek to legalize same sex marriage.
Here in North Carolina, Parker and Carignan are one of six same-sex couples who are plaintiffs in the suit the ACLU has filed against this state’s constitutional ban on same-sex unions. That lawsuit is waiting to be heard in Federal District Court in Greensboro. In the meantime, similar suits are making their way through federal district courts across the country.
There are over three dozen pending cases which challenge bans on same sex marriage.
Holning Lau is a professor at UNC law school and an expert on LGBT issues. He’s also the president of North Carolina’s ACLU. He expects that one of the three dozen cases will make it to the Supreme Court. "The question is not whether but when," he says.
In the meantime, Lau says, the U.S. Supreme Court’s ruling earlier this year could make waves in the lower courts and influence judges’ decisions: "One of the important things about these cases is that these cases create what we call persuasive authority. So federal court in North Carolina in the 4th circuit are not bound to these decisions in other parts of the country, but the courts here can cite these other cases as having good reasons that should be adopted here in NC."
Lau is optimistic the district court judge in the North Carolina case may do just that. But staunch opponents of same-sex marriage discount the idea. State representative Paul Stam is the Speaker Pro Tem of the House. He was instrumental in enlisting support for this state’s constitutional amendment banning same-sex marriage two years ago. Stam calls the ACLU’s lawsuit bogus. "The United States Supreme Court in Windsor said that states could decide who’re married under state law. North Carolina decided by a vote of the people 61 percent to 39 percent. That’s part of our constitution. And this is just part of the ACLU’s continuing guerrilla campaign against marriage," notes Stam.
The state ACLU’s legal director disagrees with Stam’s interpretation of the Windsor case, saying it strongly suggests that state prohibitions on same-sex marriage are unconstitutional. The ACLU originally filed the North Carolina suit to overturn the state’s ban on second parent adoption. But last year, when it became clear that the U.S. Supreme Court would take up the DOMA case, the state ACLU got permission from the Attorney General’s office to amend that suit to include a challenge to North Carolina’s constitutional ban against same-sex marriage.
The AG’s office wouldn’t comment for this story because of pending litigation. But in a roundtable at UNC-Chapel Hill last fall, Attorney General Roy Cooper said it made sense to allow the change. "We believe that the issues were so similar that it was more efficient to go ahead and have those issues argued in the same case. We believe that the judge probably would have granted a motion anyway. But instead of fighting about it- we’re gonna defend the law and defend the state, but this was just a matter of efficiency."
Cooper has since said he supports same-sex marriage, but he stresses that as attorney general he is committed to defending state law. That was not the choice Virginia’s attorney general, Mark Herring, made recently. Herring decided to side with the plaintiffs in a lawsuit there that seeks to overturn a ban on gay marriage. Here in North Carolina, the lawsuit is in its early stages in federal district court. The ACLU has filed all its briefs. The first task of the judge overseeing the case is to decide whether to grant the state’s motion to dismiss the suit.