The American Civil Liberties Union said Tuesday that it
hopes to use a federal case already pending here to strike down North Carolina's
A victory would legalize gay marriage in North Carolina, overturning the ban voters put into the state's constitution last year.
The push comes alongside similar efforts in other states. The movement has intensified since the recent U.S. Supreme Court decisions that legitimized some rights for gay couples but stopped short of requiring states to recognize same-sex marriages.
The ACLU hopes to expand an existing case -- amending a 2012 lawsuit involving North Carolina's ban on second-parent adoption. That suit was brought on behalf of six couples, including Shana Carignan and Megan Parker of Greensboro.
Carignan and Parker wed in Massachussetts, where gay marriage is sanctioned by the state. They adopted a 2-year-old with cerebral palsy named Jax. During the adoption process, the N.C. Supreme Court solidified the ban on two-parent adoptions when the parents aren't married.
Since North Carolina doesn't recognize Carignan and Parker's union, Parker is Jax's only parent on paper, even though his last name is Carignan.
Jax can't speak, needs a wheelchair and has stomach problems, so he spends a good bit of time in the hospital, Carignan said. The hospital treats the family well, but only Parker has legal standing to stay overnight.
Because Jax is disabled and adopted, the federal government pays his medical bills. Neither he nor Parker, a stay-at-home mom, are eligible for health insurance through Carignan's job, she said.
If Parker died, Carignan wouldn't automatically get custody of Jax.
"That's what this case is about," Parker said. "It's about ensuring that parents can protect their families."
Supporters of the marriage amendment said the ACLU is trying to undercut the will of the voters, who passed the gay marriage ban last year by a wide margin. Tami Fitzgerald, the executive director of the N.C. Values Coalition and a leading advocate during last year's amendment campaign, said it would be "a miscarriage of justice" to amend the adoption suit since it's "totally unrelated to the marriage amendment."
The adoption case, Fisher-Borne v. Smith, is sitting in the U.S. Middle District Court in Greensboro. It sat dormant while the court waited for the U.S. Supreme Court to rule in two high-profile gay marriage cases, according to Chris Brook, one of several ACLU lawyers on the case.
In both cases, the court ruled in favor of gay marriage advocates. But the decisions didn't affect North Carolina's ban or similar bans in other states. The ACLU wants to amend its adoption case here to challenge the North Carolina ban directly, and it hopes N.C. Attorney General Roy Cooper -- who represents the state in the case -- will consent to the change.
Those conversations began this week, Cooper's office said. If the attorney general doesn't agree to the change, the ACLU will petition the court to move forward with it anyway, the group said Tuesday.
After that, the case's timetable is hard to predict, Brook said. Eventually, the U.S. Supreme Court may rule more broadly on gay marriage, but it remains to be seen whether North Carolina's case, or one of several others in the pipeline, will be the vehicle for that decision.
Brook said the amended claim is part of "the next step" in a national conversation about gay rights. He said the U.S. Supreme Court's Defense of Marriage Act decision last month recognized that the government's refusal to acknowledge a marriage "visits real harm to families and children."
"And the families that we represent ... seemed ideal North Carolinians to demonstrate the harms that have occurred to their families because they're not allowed to have marital recognition," Brook said.
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