3:14-cv-00213 #72

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION
3:14-cv-213

GENERAL SYNOD OF THE UNITED
CHURCH OF CHRIST, et al.,

Plaintiffs,

v.

ROY COOPER, in his official capacity as the
Attorney General of North Carolina, et al.,
Defendants.

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STATE DEFENDANTS REPLY TO
PLAINTIFFS BRIEF IN
OPPOSITION TO DEFENDANTS
MOTION TO STAY
PROCEEDINGS
Pursuant to Local Rule 7.1, the State Defendants, ROY COOPER, RONALD L.
MOORE, ROXANN VANEEKHOVEN, NED MANGUM, BRADLEY K. GREENWAY and
ANDREW MURRAY, all sued in their official capacities only, submit this reply to Plaintiffs
brief filed in opposition of the State Defendants Motion to Stay. [DE 44, 45, 66].
The State Defendants requested the Court to stay proceedings in this matter pending the
U.S. Court of Appeals for the Fourth Circuits decision in Bostic v. Schaefer (Case Nos. 14-
1167, 14-1169, 14-1173). [DE 45, 46]. The multi-faceted rationale for this request is fully
articulated in the State Defendants brief in support of that Motion. [DE 45]. With their
opposition, Plaintiffs ask this Court to deny the Motion to Stay and cite to differences between
this case and Bostic, emphasize the unorthodox posture of the instant matter, and argue that the
reasons for the requested stay are not sufficiently substantial to justify a temporary halt of the
proceedings. The Court should reject Plaintiffs request to disregard the impending impact of
Bostic, and carry on with the litigation despite the fact that its parameters and binding precedent
will likely be significantly altered.
Case 3:14-cv-00213-RJC-DCK Document 72 Filed 06/23/14 Page 1 of 9

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I. THE PROCEDURAL POSTURE OF THIS CASE DOES NOT SUPPORT A
DENIAL OF THE REQUESTED STAY.

Plaintiffs argue that because they filed a Motion for Preliminary Injunction in conjunction
with their Complaint, this case is procedurally different from the notable line of cases, relied
upon by the State Defendants, where similar stays had been granted. [DE 45 p 5, DE 66 pp 2,
15]. That proposition is incorrect.
Plaintiffs emphasize that several federal courts have stayed their judgments on the
constitutionality of state laws regarding same-sex marriage only after their issuance of a
preliminary injunction, and suggest that there is similarly no reason this Court should refrain
from offering its opinion that such an injunction is warranted. [DE 66 p 15]. That contention
ignores the import of Herbert v. Kitchen, 134 S. Ct. 893 (2014), and the main rationale behind
the propriety of a stay - the preservation of judicial economy and integrity. The issuance of an
injunction, with a simultaneous stay of the judgment thereon, would offer no practical effect
upon or relief for the parties despite the expenditure of Court and litigant resources, while
potentially creating uncertainty in this State as to the legal status of same-sex couples. As
succinctly encapsulated by the United States Magistrate Judge Peake in her recent recommended
order to grant a stay: the Court concludes that there is no basis to proceed to issuance of an
opinion that would be immediately stayed and of no practical effect, and that would be subject to
potential reconsideration under the Fourth Circuits decision in Bostic in the next few weeks.
Gerber v. Cooper, No. 1:14-cv-299 (M.D.N.C. June 2, 2014) [Exh 1 p 3].
Moreover, the advanced appellate posture of Bostic is compelling, unique, and creates the
ideal environment for a temporary stay. Unlike other federal courts, the Fourth Circuit expedited
the appellate schedule, and has already heard oral arguments in that case. Because of this

3
accelerated schedule, it is expected that an opinion will be rendered during the course of the next
several weeks. Given the advanced appellate status of Bostic and for other reasons cited in the
State Defendants brief in support of the Motion to Stay, [DE 45 pp 2-3, 5-7], this Court should
exercise its broad discretion and stay the proceedings herein for economy of time and effort for
itself, for counsel, and for litigants. Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
Notably, and despite their protestations, Plaintiffs cite to no statutory or case precedent
that prohibits the grant of a stay at a similar procedural juncture. Indeed, other cases involving
same-sex marriage with similar procedural posture have been stayed prior to a decision on the
merits. As recognized by Plaintiffs, a pre-decisional stay was issued in McRory [sic] v. North
Carolina, No 1:14-cv-65. [DE 66 p 15]; see McCrory v. North Carolina, No. 14-cv-65, 2014
U.S. Dist. LEXIS 68440 (W.D.N.C. May 19, 2014) [Exh 2]. In that case, the Court pointedly
noted: [a]lthough the Court recognizes that a stay will delay these proceedings, the stay will be
minimal and will ultimately lead to the more efficient resolution of this case. Id. [Exh 2 p 3].
More recently, the Magistrate Judge in the Middle District of North Carolina also recommended
that stays be granted in the two cases challenging North Carolinas marriage laws with the
virtually identical procedural postures as is the instant case. Gerber; Fisher-Borne v. Smith, No.
1:12-cv-589 (M.D.N.C. June 2, 2014) [Exh 1, Exh 3]. As in the instant matter, Plaintiffs filed
motions for preliminary injunction in those cases. Likewise, as is true in the instant matter, the
requests for injunctive relief had already been briefed by the parties in the Middle District cases
when the stay order was issued. Nevertheless, that Court prudently stayed all proceedings,
including its consideration of the motion for preliminary injunction, and properly concluded that:
there are clear and convincing circumstances that outweigh any
potential harm caused by a stay, in light of the expedited review of
the important issues raised in this case already underway in the

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Fourth Circuit in Bostic, and in light of the Supreme Courts
intervention and stay of relief in Herbert v. Kitchen pending
resolution of these issues by the appellate courts.

Gerber (Slip Op at 4) [Exh 1], Fisher-Borne (Slip Op at 4) [Exh 3]. Similarly, the stay is
appropriate and prudent in the instant case at this procedural juncture.
II. THE INCLUSION OF THE FIRST AMENDMENT BASED CHALLENGE TO
NORTH CAROLINAS MARRIAGE LAWS DOES NOT NEGATE THE
JUSTIFICATION FOR THE REQUESTED STAY.

Plaintiffs further note that because Bostic does not encompass the First Amendment
claim featured in the instant matter, any opinion from the Fourth Circuit would not sufficiently
address or resolve the exclusive issues raised here. [DE 66 pp 12-14]. That argument is also
without merit, and should be disregarded by this Court.
As Plaintiffs appropriately concede: affirmance of the Virginia district courts decision
could persuade this Court to strike down North Carolinas marriage laws on Fourteenth
Amendment grounds. [DE 66 p 13]. Likewise, it is likely true that the First Amendment issue
raised before this Court will not be addressed by Bostic. However, if the Fourth Circuit
concludes that the definition of marriage as a legal union between one man and one woman is
irrational, Plaintiffs First Amendment claim will be contemporaneously resolved by Bostic, as
same-sex individuals will then maintain the right to seek a marriage license and present it to
clergy to perform a civilly valid marriage ceremony. In other words, the First Amendment issue
raised by the instant matter would be mooted by appellate recognition of same-sex marriages,
and as it pertains to the parties and issues raised in the instant matter, no further action will be
needed.
In contrast, if the Fourth Circuit concludes that the historic definition of marriage violates
neither the Equal Protection Clause nor Due Process rights, this Courts and parties resources

5
will be focused on resolving the single issue of whether North Carolinas marriage licensure laws
pass the constitutional muster in the light of the First Amendment. Irrespective of the outcome
in Bostic, judicial economy is preserved by the grant of the requested stay.
Moreover, despite Plaintiffs contrary contentions, the inclusion of the First Amendment
issue with the Fourteenth Amendment challenge does not make this case unique. Indeed, stays
have been granted in other North Carolina cases which encompass other substantive issues,
beyond the validity of the historical definition of marriage that is contemplated by Bostic. See
McCrory, Gerber, Fisher-Borne. For instance, in McCrory, plaintiffs challenged the North
Carolina Constitution and marriage laws under the Full Faith and Credit Clause of the United
States Constitution. Article IV, Section 1 of the United States Constitution. [Exh 4 p 11]. In
Fisher-Borne and Gerber, plaintiffs challenged the North Carolina statutes that prohibit second-
parent adoption. [Exh 1 p 1, Exh 3 p 1]. However, given the cornerstone significance of the
issue regarding constitutionality of this States marriage laws in those cases, the Middle District
and Western District Magistrate Judges stayed the entire proceedings, including the ancillary
issues, pending the opinion in Bostic. A similar stay should issue here.
III. THE RATIONALE IN SUPPORT OF THE REQUESTED STAY IS
COMPELLING, AND OTHER FEDERAL COURTS HAVE BEGUN
FOLLOWING THIS APPROACH.

The State Defendants outlined the hardships and inefficiencies to the State, parties, and
the Court, which are likely to result from any requirement to proceed with this matter prior to the
impending Fourth Circuits opinion. Moreover, the decision of the Fourth Circuit in Bostic
will provide the controlling legal principles for this Court to apply in evaluating [responsive
pleadings] and in determining whether Plaintiffs have demonstrated a likelihood of success on
the merits in support of their request for preliminary injunctive relief. Gerber [Exh 1 p 2].

6
Nevertheless, Plaintiffs suggest that they are especially burdened because the challenged
statutes apply to purely religious ceremonies, which solemnize marriages. [DE 66 pp 4-9].
Because of that alleged burden, they ask the Court to deny the request for stay. Yet, Plaintiffs
omit statutory language which reveals that the requirement of solemnization of marriage,
following the presentment of a valid marriage license, is applicable to any official who performs
a marriage ceremony, including secular and civil authorities. The applicable statutes are both
broad and neutral in terms of who may be implicated, and affects those who do not conduct
religious ceremonies equally as those who do. N.C. Gen. Stat. 51-1(1), 51-6. Plaintiffs have
thus failed to show that any special burden has been levied upon them.
Further, Plaintiffs did not allege that any of the named Defendants have actually
threatened any member of the clergy with prosecution for performing commitment ceremonies,
blessings or other religious rituals. Likewise, they do not argue that clergy have at any time been
prosecuted in North Carolina for performing religious marriage ceremonies on behalf of same-
sex couples. Although Plaintiffs broadly allege that a stay would cause them harm, they do not
show that this fear of harm is grounded in anything other than their mere apprehensions and a
generalized fear of prosecution and civil penalty. That concern is insufficient to warrant
Plaintiffs to obtain the immediate injunctive relief, or to avoid an appropriate stay of the
proceedings. John Lemmon Films, Inc. v. Atl. Releasing Corp., 617 F. Supp. 992, 996
(W.D.N.C. 1985) (citations omitted). This is especially true in light of the reasons for a stay
discussed by the State Defendants in their Motion, which are sound and compelling. [DE 45].
Moreover, other district courts in this circuit have already begun following this approach
in similar cases. See Harris v. Rainey, No. 5:13cv77, 2014 WL 1292803 (W.D. Va. Mar. 31,
2014) (staying all further proceedings pending resolution of Bostic in the Fourth Circuit);

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McCrory; Fisher-Borne; Gerber (same). This Court should follow the well-reasoned path of the
other district courts, as well as the Supreme Courts directive in Herbert v. Kitchen, 134 S. Ct.
893 (2014) (staying district courts injunction in similar case in Utah), and grant the State
Defendants Motion to Stay.
Respectfully submitted, this the 23rd day of June, 2014.
ROY COOPER
North Carolina Attorney General

/s/ Amar Majmundar
Amar Majmundar
Special Deputy Attorney General
North Carolina State Bar No. 24668
N.C. Department of Justice
Post Office Box 629
Raleigh, NC 27602
Telephone: (919) 716-6821
Facsimile: (919) 716-6759
Email: amajmundar@ncdoj.gov

/s/ Olga E. Vysotskaya de Brito
Olga E. Vysotskaya de Brito
Post Office Box 629
Raleigh, NC 27602
Telephone: (919) 716-0185
Facsimile: (919) 716-6759
Email: ovysotskaya@ncdoj.gov

/s/ Charles Whitehead
Charles G. Whitehead
Post Office Box 629
Raleigh, North Carolina 27602
Telephone: (919) 716-6840
Email: cwhitehead@ncdoj.gov


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CERTIFICATE OF SERVICE
I hereby certify that on June 23, 2014, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system, which will send notification of such filing to all counsel
of record.

/s/ Olga E. Vysotskaya de Brito
Olga E. Vysotskaya de Brito

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IN THE UNITED STATES DISTzuCT COURT
FOR THE, MIDDLE DISTRICT OF NORTH CAROLINA
ELLEN'$7. GERBER, et a1.,
Plaintiffs,
v.
ROY COOPER, et al.
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1:14CY299
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)
)
:ll
Defendants.
RECOMME,NDATION OF
UNITED STATES M,\GISTRATE
JUDGE
This matter is before the Court on Defendants'Motions
[Doc.
#23,#30] to stay further
proceedings in this case pending a ruling by the Court of Appeals for the Fourth Cfucuit in
Bostic v. Schaefer, Case No. 14-1167. Also pending is a Motion for Preliminary Iniunction
[Doc.
#3]by Plaintiffs, as well as Defendants'Modon to Dismiss
[Do..
#37). The Complaint
in this case challenges North Cadtna statutory and constitutionai provisions that define
mamiage as exclusively being a legal union between one man and one womarr, as well as the
North Catolina statutes that prohibit "second-parent" adoption. Plaintiffs ultimately seek a
declaration that North Carolina General statutes
$
51-1,
S
51-1.2,
$
48-1-100 et seq., and section
6 of Article XfV of the North Carohna Constitution (Amendment One) violate Plaintiffs'
constitutional rights and are void and unenforceable. Plaintiffs specifically seek an order
directing the state to recognize out-of-state mariages of same-sex couples and to accept
adoption applications from same-sex couples. In the pending Motion for Preliminary
Injunction, Plaintiffs seek a preliminary injunction "ordering all Defendants to cease enforcing
section 6 of Article XfV of the North Carolina Constitution, N.C. Gen. Stat.
S
51-1, and any
Case 1:14-cv-00299-UA-JEP Document 49 Filed O6l02lt4 Paoe 1 of 5
Case 3:14-cv-00213-RJC-DCK Document 72-1 Filed 06/23/14 Page 1 of 5
othet source of state law that operates to deny recognition of the mardages of same-sex couples
validly conttacted in another jurisdiction."
Prior to the fiting of the Complaint in the present case, a similar challenge was fi.led in
Vitginia. A motion for pteliminary injunction was frled in that case in Septemb er 2013, ald an
Order v/as entered in February 201.4, finding Virginia's rrlariage laws facially unconstitutional
under the Due Ptocess and Equal Protection Clauses of the Fourteenth Amendment to the
United States Constitution to the extent that those laws deny the tights of marnage to same-sex
couples or deny recognition of lawful mariages between same-sex couples that ate validly
enteted into in other jurisdictions. That decision v/as immediately appealed to the Fourth Cfucuit
in the case of Bostic v. Schaefer, and the Fourth Cfucuit is presently considering that case ofl a{r
expedited basis, with oral argument akeady held on May 1,3,201.4.
\7ith respect to the present Motions to Stay, Defendants contend that consideration of
Plaintiffs' claims, including considetation of the recent tequest for a preliminary iniunction and
the pendingmotion to dismiss, should be stayed pending the Fouth Citcuit's decision in Bostic.
Having considered this request, the Court concludes that a stay is appropdate for two reasolls.
First, the decision of the Fourth Circuit in Bostic will provide the controlling legal principles for
this Court to apply in evaluating the motion to dismiss and in determining whether Plaintiffs
have demonstrated a likelihood of success orl the merits in suppott of their tequest for
preliminary injunctive relief. Any decision by this Court in this case prior to Bostic would need
to be reconsidered in light of the decision ultimately issued in Bostic, which would result in
Case 1:14-cv-00299-UA-JEP Document 49 Flled 06102114 Paoe 2 of 5
significant inef{iciency and uncertainty with regard to the effect of any decision tendeted in the
interim.
Moreover, and most significantly, any decision by this Court to allow immediate
iniunctive relief would be stayed pending appellate review. See Herbert v. I(itchen, 134 S. Ct.
593
Q01.4)
(staying distrlct coutt's injunction in similar case in Utah, pending appeal to the Tenth
Circuit); Bishop v. United States ex rel. Holder
,962F.
Srrpp. 2d1.252
O{.D.
Olla.201'4) (staying
injunction in similar case in accotdance with Herbertv. I(itchen); Deleon v. Perqr,975F. S,rpp.
2d,632
(W.D.
Tex.201,4)
(same);
Love v. Besheat, No. 3:13CV750
CW.D.
Ky. Mar. 1,9,2A1"4)
(granting
^
st^y and noting that "the Supreme Court has sent a strong message by its unusual
intervention and order" in Herbert v. Kitchen); see also Bostic v. Rainey, 970 F. Srpp. 2d 456,
484 (E,.D. Ya.2014) (gtanting preliminary injunction but staying the injunction pending appeal
to the Fourth Circuit). Thus, even if this Cout heard and considered the present case and
attempted to apply the appropriate legal framewotk prior to guidance from the Fouth Circuit
in Bostic, and even if the Court concluded and recommended that relief should be granted and
an injunction should be issued, that relief would not immediately take effect in any event, and
would be stayed pending appeal to the Fourth Circuit.
In the cfucumstances, the Court concludes that there is no basis to ptoceed to issuance
of an opinion that would be immediately stayed and of no practical effect, and that would be
subject to potential reconsideration under the Fouth Citcuit's decision in Bostic in the next few
weeks. The Court has discretiofl
ry
authority to stay ptoceedings "incidental to the power
Case 1:14-cv-00299-UA-JEP Document 49 Filed 061021t4 Paoe 3 of 5
inherent in every court to conftol the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and fot litigants." Landis v. North Am. Co.
,299
U .5. 248,
254 (1,936). In exercising that discretion and balancing the competing interests in the present
case, the Court finds that there are clear and convincing circumstances that ounveigh any
potential harm caused by a stay, in light of the expedited review of the important issues raised
in this case already underway in the Fourth Circuit in Bostic, and in light of the Supreme Court's
intervention and stay of relief in Herbert v. I(itchen pending tesolution of these issues by the
appellate courts, as discussed above. In reaching this conclusion, the Court notes that othet
district courts in this citcuit have aheady begun following this approach in similar cases. See
Harris v. Rainev, No. 5:13cv77,201,4W1-1,292803
CIg.D.Va.
Mat. 31.,201,4)
Gtry-S
all further
proceedings pending tesolution of Bostic in the Fourth Circuit); McCrory v. North Catolina, No.
14-cv-65,2014WL2048068
CW.D.N.C.
May 19, 2014) (same). Indeed, in McCtorlr, the United
States District Court fot the Westetn District of North Carcbta stayed further ptoceedings in
a c se raising challenges to mafly of the same provisions at issue in the present case, based on
the pendency of the appeal in Bostic. This Court finds these cases persuasive and recommends
that the same approach be followed here.
IT IS THEREFORE RECOMMENDED that the Motions to Stay
[Do..
#23,#30)be
GRANTED, that all proceedings in this case, including consideration of Defendants'pending
Motion to Dismiss and Plaintiffs'Motion for Preliminary Injunction, be stayed pending the
Fourth Circuit's decision in Bostic v. Schaefer, Case No. 14-1167 (4thCl;..201,4), and that the
4
Case 1-:1-4-cv-00299-UA-JEP Document 49 Filed O6lO2lL4 Paoe 4 ot 5
parties be directed to notify the Cout in writing of their position on the course of future
proceedings within 10 days following issuance of a decision by the Court of Appeals for the
Fourth Circuit in Bostic.
This, the 2nd day ofJune, 201,4.
/s /
Joi
Elizabeth Peake
United States Magistrate
Judge
Case 1:14-cv-00299-UA-JEP Document 49 Filed OGlO2lL4 Paoe 5 of 5
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:14cv65
CAROL MCCRORY and BRENDA
)
CLARK
Plaintiffs,
v.
THE STATE OF'NORTH
CAROLINA, et al.,
Defendants.
)
)
)
)
)
ORDER
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)
Pending before the Court is the Motion to Stay
[#
8]. Defendants move to
stay this case pendingaruling from the United States Court of Appeals for the
Fourth Circuit in Bostic v. Rainey. Previously, the Court directed Plaintiffs to
respond to the Motion to Stay and granted Defendants an extension of time until
June 10, 2}l4,to answer or otherwise respond to the Complaint. Upon a review
of the record, the parties' briefs, and the relevant legal authority, the Court
GRANTS the motion
[#
8].
I. Analysis
As the United States Supreme Court has explained, "the power to stay
proceedings is incidental to the power inherent in every court to control the
-1-
Case 1:14-cv-00065-MR-DLH Document 13 Filed 05/1-9/14 Page 1 of 3
disposition of the causes on its docket with economy of time and effort for itself,
for counsel, and for litigants." Landis v. North American Co.
,299
U.S. 248,254'
55,57 S. Ct. 163,166 (1936). "The determination by a district
judge
in granting or
denying a motion to stay proceedings calls for an exercise ofjudgment to balance
the various factors relevant to the expeditious and comprehensive disposition of the
causes of action on the court's docket." United States v. Georgia Pacific Corp.,
562 F .2d 294, 296 (4th Cir. 1977); see also Maryland v. Universal Elections. Inc.,
729F.3d370,375 (4th Cir. 2013).
The Court finds that staying this case pending the resolution of Bostic in the
Fourth Circuit is the most efficient means of managing these proceedings.
Although Bostic concerns the constitutionality of Virginia's legislated prohibition
on same-sex marriage, see Bostic v. Rainey, Civil No. 2:13cv395,2014 WL
561978 (E.D.Va. Feb. 13,2014),the analysis of the constitutional issues before
the Fourth Circuit will be extremely pertinent, if not dispositive, of the issues in
this case
-
namely, whether North Carolina's marriage laws that define marriage as
between a man and a woman are constitutional. The Court finds that it would be
a waste ofjudicial resources, as well as the resources of the State and the Plaintiffs,
to move forward in this case prior to a decision in Bostic. Put simply, the outcome
in Bostic will in all likelihood shape the outcome of this litigation.
-2-
Case 1:14-cv-00065-MR-DLH Document 13 Filed 05/19/1-4 Page 2 of 3
Although the Court recognizes that a stay will delay these proceedings, the
stay will be minimal and will ultimately lead to the more efficient resolution of this
case. A panel for the Fourth Circuit has already heard oral argument in Bostic;
decision is forthcoming. Moreover, the stay is not indefinite as Plaintiffs fear.
Because this Court is bound to follow the law as set forth by the Fourth Circuit,
any decision in Bostic will be binding on this Court, regardless of whether the
Supreme Court ultimately addresses the issue. Thus, the Court will only stay these
proceedings pending a final decision by the Fourth Circuit in Bostic. Finally, the
Court notes that there is not a motion for preliminary injunction pending in this
case. Accordingly, the Court GRANTS the motion
[#
8].
II. Conclusion
The Court GRANTS the Motion to Stay
t#
81. The Court STAYS this case
pending a ruling from the United States Court of Appeals for the Fourth Circuit in
Bostic v. Rainey. Either pafiy may move to lift the stay in this case ten (10) days
after the entry of a decision by the Fourth Circuit.
Signed: May 19,2014
\^l**^;
tq- CS*^*"s\
Dennis L. Howell
ffi
United States Magistrate Judge
r' d#q/
-J-
Case 1-:14-cv-00065-MR-DLH Document 13 Filed 05/L9/14 Page 3 of 3
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IN THE UNITED STATES DISTRICT COURT
FOR THE, MIDDLE, DISTRICT OF NORTH CAROLINA
MARCIE FISHER-BORNE, fot herself
and as guatdian ad liten fot M.F.-B.,
a minor, et a1.,
Plaintiffs,
v.
JOHN
Sf. SMITH, in his official capacrq,
as the Director of the North Carolina
Administrative Office of the Courts, et al.,
1:1,2CY589
Defendants.
RECOMMENDATION OF
UNITE,D STATES MAGISTRATE
JUDGE
This matter is before the Court on Defendants
John
S7. Smith, The Honotable David
L. Churchill, The Honorable Archie L. Smith III, and Roy A. Cooper's Motion
[Do..
#84] to
stay further proceedings in this case pending a ruling by the Court of Appeals for the Fouth
Circuit in Bostic v. Schaefer, Case No. 14-1167. Also pending is a recendy-fi.led Motion for
Preliminary Injunction
[Do..
#75)by Plaintiffs Cangnarr and Parket, as well as Defendants'
Motions to Dismiss
poc.
#63, #65]. The Complaint in this case challenges North Carclina
statutory and constitutional provisions that define mariage as exclusively being alegal union
between ofle man and one womafl, as well as the North Catolina statutes thatptohibit "second-
parent" adoption. Plaintiffs ultimately seek a declaration that North CarrJirra General Statutes
S
51-1,
$
51-1.2,
S
48-1-100 et seq., and section 6 of Article XfV of the Noth Carclina
Case 1 : 12-cv-00589-WO-J E P Document 97 Filed OGl02l1,4 Paoe 1 of 5
Constitution (Amendment One) violate Plaintiffs' constitutional rights ald arc void and
unenfotceable. Plaintiffs specifica\ seek an order dfuecting the state to recognize out-of-state
marriages of same-sex couples and to
^ccept
adoption applications and mariage applications
from same-sex couples. In the pending Motion for Preiiminary Injunction, Plaintiffs seek a
preliminary injunction "ordering all Defendarits to cease enforcing section 6 of Article XIV of
the North Carclina Constitution, N.C. Gen. Stat.
S
51-1, and any other source of state law that
operates to deny recognition of the mariages of same-sex couples validly contracted in another
jurisdiction."
At the same time that the Amended Complaint was filed in the preseflt case, a similat
challenge was filed in Virginia. A motion for preliminary injunction v/as filed in that case iri
September 2013, and an Order was efltered in February 201"4, fit dit g Virginia's mariage laws
facially unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution to the extent that those laws deny the rights of
mariageto same-sex couples or deny recognition of lawful marriages between same-sex couples
that arc validly entered into in other judsdictions. That decision was immediately appealed to
the Fourth Circuit in the case of Bostic v. Schaefet, and the Fouth Cfucuit is presently
considering that case on arr expedited basis, with oral argumerit aheady held on May
'1.3,2014.
lfith respect to the present Motion to Stay, Defendants contend that consideration of
Plaintiffs' claims, including consideration of the recent request fot a preliminary injunction and
the pending motions to dismiss, should be stayed pending the Fourth Cfucuit's decision in
Case 1:12-cv-00589-WO-JEP Document 97 Filed OGlO2l1,4 Paoe 2 ot 5
Bostic. Having considered this request, the Court concludes that a stay is apptopriate for nvo
reasons. First, the decision of the Fourth Cfucuit in Bostic will provide the controlling lega1
principles for this Court to apply in evaluating the motions to dismiss and in detetmining
whether Plaintiffs have demonstrated a likelihood of success on the merits in support of theit
request for preliminary injunctive relief. Any decision by this Court in this case prior to Bostic
would need to be reconsidered in light of the decision ultimately issued in Bostic, which would
result in significant inefficiency and uncertainty with regard to the effect of arty decision
rendered in the interim.
Moteover, and most significantly, any decision by this Court to aliow immediate
injunctive relief would be stayed pending appellate review. See Herbert v. Kitchen, 134 S. Ct.
593
Q01,4)
(staying district court's injunction in similar case in Utah, pending appeal to the Tenth
Circuit); Bishoo v. United States ex rel. Holder
,962F.
Srpp. 2d1,252 (I{.D. OHa.201.4) (staying
injunction in similar case in accordance with Herbertv. I(itchen); Deleon v. Perry,975F. Srpp.
2d 632
CW.D.
Tex. 2014) (same); Love v. Beshear, No. 3:13CV750
flX/.D.
I(y. Mar. 1,9,2014)
(granting a stay and noting that "the Supreme Court has sent a strong message by its unusual
intervention and order" in Herbet v. I(itchen); see also Bostic v. Rainey, 970 F. S.rpp. 2d 456,
484 (E.D. Ya. 201,4) (ganting preliminary injunction but staying the injunction pending appeal
to the Fourth Circuit). Thus, even if this Court heard and considered the present case and
attempted to apply the appropriate legal framework prior to guidance from the Fourth Citcuit
in Bostic, and even if the Court concluded and recommended that telief should be granted and
Case 1:12-cv-00589-WO-JEP Document 97 Frled OGlO2l1"4 Paoe 3 of 5
an injunction should be issued, that telief would not immediately take effect in any event, and
would be stayed pending appeal to the Fourth Circuit.
In the circumstances, the Coutt concludes that there is no basis to proceed to issuance
of an opinion that would be immediately stayed and of no ptactical effect, and that would be
subject to potential reconsideration under tlle Fourth Citcuit's decision in Bostic in the next few
weeks. The Court has discretionary authodty to stay proceedings "incidental to the power
inherent in every court to control the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for litigants." Landis v. North Am. Co.
,299
U.5.248,
254 (1,936). In exercising that discretion andbalancing the competing interests in the present
case, the Court finds that there are clear and convincing circumstances that out'weigh any
potential harm caused by a stay, in light of the expedited review of the important issues taised
in this case already underway in the Fouth Circuit in Bostic, and in light of the Supreme Court's
intervention and stay of relief in Herbert v. ICtchen pending tesolution of these issues by the
appellate courts, as discussed above. In reaching this conclusion, the Court notes that other
district courts in this citcuit have aheady begun following this approach in similar cases.
b
Harris v. Rainey, No. 5:13cv77
,2014W1-
1292803 (1W.D. Ya.Mar 31,,201.4) (staying all further
ptoceedings pendingtesolution ofBostic in the Fouth Circuit);McCtor]rv. North Catolina, No.
1,4-cv-65,2014WL2048068 (\f.D.N.C. May 19,201,4) (same). Indeed, in McCtory, the United
States District Court for the V7estetn Disrict of North Carohna stayed further proceedings in
a case raising challenges to many of the same provisions at issue in the present case, based on
Case 1:12-cv-00589-WO-JEP Document 97 Filed O6lO2lL4 Paoe 4 of 5
the pendency of the appeal in Bostic. This Court finds these cases persuasive and recommends
that the same approach be followed here.t
IT IS THEREFORE RECOMMENDED that the Motion to Stay
[Do..#84]
be
GRANTED, that all proceedings in this case, including consideration of Defendants'pending
Motions to Dismiss and Plaintiffs' Motion fot Preliminary Injunction, be stayed pending the
Fourth Citcuit's decision in Bosdc v. Schaefer, Case No. 14-1167 (4th Ctt. 201.4), and that the
parties be directed to noti$r the Cout in writing of theit position on the course of future
proceedings within 10 days following issuance of a decision by the Coutt of Appeals for the
Fourth Circuit in Bostic.
This, the 2r'd day ofJune, 201,4.
/s/
Joi
Elizabeth Peake
United States Magistrate
Judge
1
The Court notes that although Plarntiffs initially filed their Complaint in this case in 2012, Defendants
filed a Motion to Dismiss that Complaint, and the Coutt held the Motion to Dismiss in abeyance to allow the
parties to address developments in United States v. Windsor, culminating in Ptaintiffs filing an Amended
Complaint adding claims based on the Supteme Court's decision in that case. Defendants subsequendy filed a
Motion to Dismiss as to the Amended Complainq and that Motion to Dismiss was teferred for review and
recommendation on February 7,201,4. However, the United States District Court for the Eastetn Disttict of
Virgrnia issued its decision in Bostic six days later, and that decision was immediately appealed to the Court of
Appeals for the Fourth CLcurt. As a resulq the decision in
fu1ic
has become the fust case to present these issues
for consideration by the Fourth Cfucuit.
Case l-:l-2-cv-00589-WO-JEP Document 97 Frled 0610211,4 Paoe 5 of 5
tuAR
I
(}
?tit+
UNITED STATES DISTRICT COURT
TAE$Tf;RN DI$TRICT OF NORTH CAROLINA
ASHEVILLE BMISION
-,'&.
&r
CAROL MCCRORY AND BRENDA CLARK,
Plalntiffs,
v3.
THE STATE 0F I{ORTH GAR$LINA; ROY
COOPER, in his official capacity as
ATTORNEY GENERAL Of NOrth CATOIiNA:
and ELAINE F. MARSHAI-L, in her official
capacity as SECRETARY OF STATE of
North Carolina,
COmPx-Af l\lT f O*. DEOLARATPRY
JUBGMTNT ANp IUJU$STYE
F6I-IFf
Case Ns.
I lLl cu L or\
Oefendants.
)
ruRl$*[cT19N
1" Jurisdiction is proper in this court aecording to 42 U.S.e.
$
1983, and 28
U.$;C.'$ 1331 and
$
1343 (3) and (4)"
vElluE
2" Venue is proper in thi* district pur,*uant to 28 U.S.C.
S
1391(b) (2)
because the Western District sf North Carolina is where the events
giving rise to
Plaintif.fs' claims occurred.
PARTIES
3. Plaintiffs Carol C. McCrory and Brenda $. Clark ara a rnarfied cauple
residing in Fairview, North Carolina.
4.
(a) The State cf North Carolina is ona of the States of the United
Statea of America.
tb)
Roy Coqper:, Attorney General of the $tate of North Carolina, acting
under authority and color of state law, and who represents the state in legal matters, ls
sued in his official capacity. Defendant Cooper's mailing address is: Attorney General's
Office, 9001 Mail Service Center, Raleigh, NC 27699-9001.
(c) Elaine Marshall, Secretary of State of the State of North Carolina,
acting under the authority and color of state law, who
performs duties that may be
devolved upon her by resolution of the tffo houses of the GeneralAssembly or by either
of them, is sued in her officiat capacity. Defendant Marshall's mailing address is: NC
Secretary of State, PO Box 29622, Raleigh, NC 27626-0622.
NSTURE oF.IltE
qA*H
5, Plaintiffs bring this action to challenge the constitrtionality of North
Carolina's marriage laws that exclude same-sex couples from marriage in North
Carolina and that void within the state those marriages that were declared legally valid
in other states or countries. North Carolina's Constitution and marriage statutes violate
Plaintiffe' a*d other $ame*Eex couple$' due
proce$s,and equal
protection rights undgr
the United States Constitution as a matter of law. Plaintiffs raise federal constitutional
challenges to the North Carolina Constitution and North Carolina marriage statutes that
prohibit same-sex marriage and/or inhibit the rights of Plaintitfs and other same-sex
couples validly married in other states.
GAI,,.$E OF ACTION
6. Plaintiffs have been together for 25 years. On November 4, 1988, they
celebrated a comrnitment ceremony at their church in St. Petersburg, Ftorida. Since
thattime, they have considered themsafves married. They have raieed toro children
together, and now have two grandchildren together.
7. Plaintiffs were legally married in the state of New York on Novernbe-rg,
2013, in the presence of their children and grandchildren. However, because North
Caralina doe* not recognize their marriage, Plaintiffs returned home to find they would
now be treat*d as legal strangers. On January 4,2A74, Plaintiff Carol McCrory
undenruent cancer surgery, but was prohibited from listing her spouse Brenda as next of
kin, because in North Carolina, Brenda is a legalstranger.
8. Like other married couples, Plaintiffs have cared for each other, supported
each other, sacrificed for each other, and rnade
plans for a future with each other Like
other couples that have made a lifetime commitment to each other, Plaintiffs are
spouse$ in every $ense, except that North earclina refuses to honsr lheir marriage"
Although they are legally married in another
jurisdiction, their marriage is not valid here,
Plaintifb are denied the dignity and status of maniage that other legally maried couples
enjoy, and by this act are denied the full value of citizenship.
9. North Carolina's exclusion of same-sex couples from recognition of their
rnaniages harms Plaintiffs in significantways. lt exciudes them frorn the many legal
protections available to heterosexual spouses whose marriages are recognized by
Defendants, Fsr example, if a same-sex spouse in North Carolina dies intestate, the
surviving same-sex spouse faces serious financial hardship, including the loss of the
family home, because a surviving sarne-sex spouse in North Carolina is denied the
inherit*nqe tax proteetions provided to heterosexualsur,viving spouses. Additionally,
Plaintiffs are denied the ability to own their fumily home as tenants by the entirety.
Heterosexuel nr:arried couple$ automatically own tlrcir hornes by the entirety, and this
type of ownership provides significant legal protection for married couples. Singling out
saffie-sex couples to exclude them frsm this legal advantage denies them
qqual
protection. Finally, while same-sex couples legally rnaried in a state that recognizes
their merriagres may take advantage of Social Security spousal benefits, Plaintiffs here
may not. Social Security benefits are federal benefits, but their availability to same-sex
married eouples !s dependent on their
place
sf dornieile. not the
place where the
marriage was performed. Because Plaintiffs are elderly (seventy and sixty-seven), the
exclusion from the benefits of Social Security imposes a significant and immediate
detrimental effect on them.
10. Additionally, Plaintiffs cannot file their North Carolina state taxes
jointly,
and in fact, are forced to lie on their stale tax returns when they report their marital
status. tn a directive exclusively targeting same-sex citizens of North Carolina, Plaintiffs
were instruded by'the North Carolina Department of Revenue:
Under Rev. Rul" 2Q13-17 the lR$ now allfllrs sameisex'$pou$Bs to file
their federal income tax returns using the filing status of married filing
jointly
or matried filing *epamtely. Because North Carofina does not
recognize same-$ex maniage as valid (N.C. Gen. Stat.
S
51-1
?),_t!9
North earolina Departrnent of Revsnue cannotfolli:w the new definitions
in Rev. Rul. 2013-17. Consequently, individuals who enter into a same-
sex marriage in another state cannot file a North Carolina tax return using
the filing status of married filing
jointly
or married filing separately.
Eaeh such individualwill need tofile a separate Norlh Carolin* income tax
retum on Form D-400 using the filing status of,single. . , $uch indiViduals
whofile a federal income tax return as married . . . muet each cornplete a
separate
pro forma federal return for North Carolina
purposes, wlth the
filing s.tatus of single. . . io determine
'ea.eh
irrdividual:s
proper adjusted-
gra$s income, deductions and tax credits allowd under the CMe forthe
filing status used for North Carolina purposes, and then attach a copy of
the
pro
forma federal return to the North Carolina return.
$ee 201,3 North Carolina Individual lncorne Tax lnstruetions for Form D.400 at p.4
{avail
able a f httpf/d orn c.com/d own I oads/n40 1 . pdf}.
11. North Carolina's state income tax directive, rnoiivated by ani'mus, aRd
aimed solely at same-sex citieens, not only burdens them with additional, lime-
consuming work, but also targets them with moral disapproval. No other citizens in
North Carolina are required to fill out their tax return twice: one fake and one real. No
other citizens in North Carolina are directed to perjure themseMes on their tax returns
when they sign them. This requirement serve$ no legitimate state purpose, but instead
serves only to demean and demoralize Plaintiffs and other sarne-sex couples.
1?,. Plaintiffs have accepted all of the burdens of citizenship irnposed on them
by the state of North Carolina (such as paying state income tax), but unlike other
citizens, have been singled out to be deprived of the bonefits of rnaniaga and family life
that are extended to other rnarried couples and that are a fundamental right in North
Carolina and in the United States.
13. Because one of the Ptaintiffs children and all of their
grandchildren live in
Pennsylvania, Plaintiffs are severely burdened as they travel from North Carolina to
Pennsylvania for family visits and holidays. On the way to Pennsylvania, they can be
married to each other, or legal strangers to each other, depending upon the state
through which they are traveling. \A/hen they travel through Mrginia, there is the
pos$ibility their marriage is valid. ln Maryland, it is definitely valid. ln West Virginia it is
not valid. !n Pennsylvania it is not valid. Once in Pennsylvania, if ihey drive to
Delaware or New Jersey, they are considered legally married again. This legal
mine{ield presents a quagmire of possibilities and difficult choices if eilher or both
Ptraintiffs should be injured or killed in an automobile accident.
14. The exclusion frorn marriage undennines Plaintiffs' ability to achieve their
life goals and dreams, threatens their mutual economic stability, and denies them a
"digni$ and status of immense irnpori.' united Stales v- Wndsor, 57O U.S.
-,
slip
op. at 18 (June 26,2013)
{avaitable
af http:l/www.supremecourt.govlopinions/12pdtt1L-
30,7_6i37"pdf.) Moreover, Plaintiffs and their children are stigmatized and relegated to
second-class citizenship status by being barred from marriage. The exclusion
"tells
[same-sex]
couples and all the world
-
that their relationships are unworthy' of
recognition . ld. at22-23.lt humiliates their children and
"makes it even more difficult for
the children to understand the integrity and closeness of their own family and its
concord with other farnilies in their communi{; and in their daily lives.' ld. at 23.
15. Plaintifb were legally married in New York and their marriage should be
recognized in North Carolina under the Full Faith and Credit elause, the Equal
Protection Clause and the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
CtAlrtll$ FOR, REUEr
16. Plainti#s challenge Amendrnent One of the No*h Carolina Constitution
and the North Car.olina marriage statute, N.C. Gen. Stat,
$
51-1.2 underthe recently
decided case of United Sfafes v. Windsor; under the Equal Protection and Due Process
O|auaes of the United States Constitution; and under the Full Faith and Credit Clause of
the Gonstitution.
17 . Specifically, Plaintiffs challenge and seek relief from Amendment One of
the North Car,olina state csnstitution: ARTICLE XlV, Section 6 of the Constitution of
North Carolina, as amended, which provides:
Marriage between one ,YIAR and one woman is the only domesticleg?l
union that shall be valid or recognized in this State. Thi* seetion does not
prohibit a private party from entering into contracts with another
private
part$ nor does this section
prohibit courts frorn adjudicating the rights of
private parties pursuant to such contracts.
ld,
18. Plaintiffs also challenge and seek relief from the North Carolina marriage
statute, N.C. Gen. $tat.
$
51-1.2, which
provides:
Marriages between
persons
of the same
gender not valid. Marriages,
whether created by crrmnron la.w, eontracted, or
performed outside of
North Carolina, between individuals of the same gender are not valid in
North Carolina.
td.
19. The foregoing state constitutional arnendment and statute deny Plaintiffs
and other sarne-sex couples legal recognition of their marriages in North Carslina, even
though they are legally married in one of the many states or numerous foreign countries
wherc $ame-sex marriages are legal.
20. Plaintiffs challenge the North Garolina statutes and constitution under the
holding from the case of lJnited Sfates v. Windsor, 570 U.S. 12, 133 S. Ct. 2675,z}fi
U.S. LEXIS 4935 (June 26, 2013), which held the federal Defense of Marriage Act was
unconstitutional under the Due Process clause of the Fifth Amendment, because
re$tric-:lng federat interpretation of
"marriage"
to apply only to heterosexual unions
"disparages and . . . injules thsse who the State by its marriage lawS oughtto
protect in
personhood and dignity." Wndsorfound that DOMA denied fundamental fairness and
equal protection of the law to gay citizens.
21. Whils
the t{ifndsor decision is nimited to a finding that the fEderal
governrnent cannot discrirninate against gay citizens, courts in Kentucky, Ohio,
Oklahoma, Virginia, and most recently, Texas, have now broadly interpreted Wndsorto
find that banning same-sex marrbge serves no legitimate state purpose.
22. ln De Leon v. Perry,2014 U.S. Dist. LEXIS 26236 (W.D.Tex. Feb- 26,
2A141, a federal district court in Texas considered whether to enter a
preliminary
injunction stopplng defendants (govemment officials in Texas) from enforcing Texas'
statutory
prohibition on same-sex marriage and whether to enter a declaratory
judgment
that Texas' ban on same-sex marriage and failure to recognize out-of-state same-sex
marriages was unconstitutional. ln granting the plaintiffs' motion for preliminary
injunction, the Texas district court first noted:
Regulatian of rnaniage hastraditionally been the
province of the states.
and remains *o today. Hovveverr any sttte law involving rnarriage or any
other protected interest must comply with the United States Constitution.
ln {Jnited Sfafes v. Windsor, U.S., 133 S. Ct, 26?5
(2013}, tha United
$tates Supreme Court recently held that the federal government cannot
l.efuse to recognize a valid state-sanctioned same-aex maniage. Now, ffte
lswer cauftsmusf appty the Supreme Cnurfb decision in 1ffindsor and
decide whether a state can do what the ,fedeml gavsmmanl cannoF*
discriminate again st sarne-sex cou ples.
/d. at
*3
(ernphasis added).
23. tn granting the plalntiffs' motion for a preliminary injunction, the district
court in De Leon compared Texas' same-sex marriage ban to the parts of DOMA that
the United States Supreme Court found unconstitutional in Wndsor. Ultimately, the
distriet court esncluded that Texae law:
[]s
not connected to any legitimate interest that
juetifies
the denial of
same-sex. marriase or reeognitirrn s{ legal out of-state marrmges. To the
contrary,,as an Ol1io dlstricicourt recently found when e$nfiunted with the
sam question,
"the
only purpose served by trealing $ame'6ex'married
couples differently than opposite-sex married couples is the same
impi:aper
purpose that faiied tn Wndsarand Rom6f
*
to impose inequality"
and to make
gay
citizens unequal under the latil:"
td. at*48 (citing Obergefeltv. Wymysto. 2013 U.S. Dist. LEXIS 179550, at
*73
(S.D. Ohio Dec. 23, 2013)).
,2A.
Pfaintiffs in this action challenge and seel( relief frorn the
pre.ludicial North
Carolina constitution and marriage statutes under the Equal Protection and Due
Process clauses ef the Fourteenth Arnendment to the United States Constitution.
Altliraugh North Carolina
prohibits certain types of rnarriages, such as marriages
between double first cousins and marriages between certain classes of minors, it
recognizes those rnarriages when performed legally in states that allow them. North
Carolina treats those marriages differently from the way in which it treats valid sarne-sex
rnarriages that are prohibited here butlegally recogniaed in sther states,
25. By treating lawful same-$ex marriages differently than it treats lavrrful
oppo;ite sex marriages
perforrned outside the state, North Carolina has violated the
Equal Protection Clause of the United $tates Constitution. The Equal Protection Clause
guarantees that'l[n]o State shal! make or enfiarce any law which shall
' ' '
deny to any
person within its
jurisdiction
the equal protection of the laws." The Equal Protection
Clause requires that "all persons sirnilarly situated should be treated alike." City of
Clebume, Tex. v. Clebume Living Ctr.,473 U.S.432,439 (1985) (quoting Plyterv. Doe,
457 U.S. 202,216 (1982)).
26,. These federal csnstitrrtional protections als invoked when a *tato statrute
trsats elasges of citizens in a different manner even- though they stand in the same
relation to the statute, either sn its f;aca or in prcetiee. lndividuals need only be similarly
situated for the purposes of the challenged law. Sylvia Dev. Carp. v. Catvert Cnty., Md.,
43 F.3d 810, 818 (41h Cir. 1gg5), Equal protection requires that states apply each law,
within its scope, equally to persons similarly situated, and that any differences of
application must be
justified
by the law's purpose.
?7. North Carolina prohibits
marriages betwe*n double first eousin$, but out-
of-state marriageg behreen double first cousins may be recognized b3 North'Sarolina,
once the couple establishes residency here. Additionally, North Carolina
prohibits
maniage betwegn minors when one of ths parties is belsw the age of'fourteen.
However, if an opposlte sex minor couple now living in North Carolina becomes legally
married in New Harnpshire when the bride is only thirteen, North Carolina recognizes
that marriage once the couple returns. Only in the case of same-sex couptes does
North Carolina refuse to recognize a marriage that is valid in another state.
28. No*h Carolina singles out
gay
eitiiens in a way that offends haditional
notions of fairness and basic principles of equality. North Carolina, rather than
extending protections to frequently oppressed same-sex couples, seeks to harm them
,further
by imposing laws that have wide-rangiilg detrimental effects on their lives.
Enforcement of North Carolina's marriage laws resutts in legal and eocia! con$equence$
and imposes the pain of humiliation, stigma, and emotional distress on these couples,
that accumulates daily. The laws at issue target a subset of individuals-gay and
{0
lesbian citizens-that are similarly situated to North Carolina's heterosexual individuals,
and deprive only that subset of the benefits and privileges of a valid legal marriage.
29. Finally, Plaintiffs challenge and seek relief from the North Carolina
Constitutisn and marriage laws under'the Full Faith snd Credit Clause of the United
States Constitution. Article lV, Section 1 of the United States Constitution, the "Full
Faith and Credit Cfau$e," addresses the duties that states within the United States have
toward each other, to respect the "public acts, records, and
judiciaN proceedings of every
other state.' Plaintiffs seek relief from the irnpooition of any North Carolina law that barc
same-sex maniage or
prohibits the State's recognition of ctherwise-lawful$atrteex
marriages fronr otheriufisdictions. Plaintiffs also reque$tthat their constitutional
challenge extend to any North Carolina case or common law upon which the
Defendants or sther
parties might rely [n atternpts to withhold rnariage from,$arn-sex
couples or deny recognition to the legal marriage of same-sex couples.
30. Plaintiffs incorporate by reference allthe preeeding paragraphs of this
Gomplaint.
31. Plaintiffs have been denied the fundamental right to marry and establish a
fanirily.
32. Plaintiffs are mernbers of a distinct and insular minority that has suffered a
history of discriminat'ron in North Caroli*a, ln the case of Amendment One, same-sex
coupl*s are $pecifically targeted for dis*rirnination.
33" Plaintiffs have applied for mar:riage licenses on five separate occasions at
11
the Register of Deeds Office in Buncombe County, since Oclober of
'2011,
Eaeh of the
first four times, the Register of Deeds or one of his ernployees stamped 'reject" on the
license application. Finally, on October 15,2013, Register of Deeds Drew Reisinger,
aecepted th.e application. Mr. Reisinger,then sentthe application to Defendant:Cooper
with a {etter of inquiry asking if he cou}d grant a license to the plaintiff couple- Mr.
Reisinger e-xplained that in his view; it was uneonstitutional under Wndsar not to do so.
To date, neither Mn. Reisinger, nor Ptaintiffs have rsceived any response from
Defendant Cooper. As the Supreme Court in Romer held so succinctly:
[The
state law]
'clagsifies homosexuals not to further a
pruper
legislative end but to make them unequal
to everyone etse, This
[the
state] cannot do. A state eannot so deem a class of
persons a stranger to its laws." 517 U.S. at 635-36 (1996). Similarly, North Carolina has
attempted to rnake the Plaintiff couple a stranger to its laws, through the rebuke by
Defendant Cooper who has not bothered to answer the letter of inquiry frorn the
Buncornbe Oounty Register of Deeds. This official snub has served to impose upon
Plaintiffs a disadvantage, a separate status, and a stigma that causes them to feel
humiliated, and their relationship diminished and less than equal to other citizens. The
purpose servd.by traating $ame-$ex couples differently than opposit*sex couples is
the same improper purpose that failed in Wndsor and Romer - which is sirnply \o
innpose inequalig." This attempt to devalue the Plaintiff couple's relationship of twenty-
five years by Defendant Cooper has caused humiliation, self-doubt, and irreparable
harrn to Plaintift.
34. Plaintiffs have been denied the legal recourse to seek redress of
grievances. Sexual orientation is a core, defining tr:ait that is so fundarnental to one's
12
identity that a person eannst cha*ge. No mainstream professlonal mental health
organization approves interventions that attempt to change sexual orientation.
T&arefore, ffime-sex couples are caught in a
ncatch-z2'
situation. They
Qannot'change,
io heln;themEelves rd individuals
and they cannotseek legal recounseto help themselves. North Carolina ar
within the state can legally discriminate against them because they lack statutory
protection against discrimination in employment, public accommodations, and housing.
35. Plaintffis, as a same-sex co-uple, are rrequired to
pay the same taxes as
opposite sex couples, but are denied the privileges and beneflts those taxes
provide.
Same-sex couples are forced to fund the very governrnent that discriminates against
them. They are by state law, relegated ttrthe status of second-class citizenship.
36. Plaintiffs have been excluded from the many legal
protections available to
opposite sex married couples in North Carolina:
(a) Plaintiffs may not clairn the privilege afforded to opposite sex
couplee that would restrict testirnony againet them by their spouse$ in a court of law.
(b) Plaintiffs may not hold titte to their homestead property by the
entireties.
(c) Ptaintiffs may not claim Social Security benefits available to otlrer
$ame-sex couples residing in states that recognize their marriages.
(d) Plaintiffs rnay not benefit from a claim brought under North
Carolina's Wrongful Death Act, N.C.
$
2BA-1S-z(a).
(e) Plaintiffs cannot enjoy the benefit of the privacy that heterosexual
married couples enjoy in the form of evidentiary privileges between spouses under N.C.
Gen. tat.
$,8-56.
13
(0 Finally., and not insignificantly, Plaintiffs are forred b,y the state to lie
and comrrrit periury on their state income tax retufns, declaring themselves to be single,
when in fact they are legally married.
q"nEvlou*
Lgwsurs
lxn aoauusrner.lYr Rrurr
Plaintiffs have filed no other laursuitc in staie or{ederaleourt that,deal
with the
same facts and circumstances of this action.
SSQUE$T HQRREl-ffir"
Plaintiffs respectfully request that this Court:
1. Enter a declaratory
judgment
that Amendment One to the North Carolina
Constitution violates the Equal Protection and Due Process Clauses of the Fourteenth
Amendment to the Uniled States Constitution.
2. Enter a declaratory
judgrnent
that North Carolina General Statute
S
51-1.2
violates tlre Equal Protection and Due Process Olauses of the Fourteenth Amendment
to the United States Constitution,
3. Enter a permanent injunction enjoining Defendants from denying Plaintiffs and
all other same-sex couples the right to have their rnarriages legally recognized, when
those marriages have been validly entered into by Ptaintiffs and other same-sex couples
outside the state of North Carolina and directing Defendants to recognize marriages
validly entered outside the state of North Carolina by Plaintiffs and other same-sex
eouples,
4. Award costs of suit and fees under 42 U.S.C.
S
1988; and/or
5. Enter all other and further relief to Plaintiffs that this Court deems appropriate.
14
JURYTBBL *EGUE$?ED: YES*NO..*X-
D,HCLAXATION UHOER PTT{ALTY OF PERJURY
The undersigned declare under penalty that they are the Plaintiffs in-the above action,
th*t they haie read the above Crlrnplaint and that all of the above information is true
and correct. 28 U.S.C.
S
1621.
Executed ar
*,*k*q/; l{n Nu
a"
a.$a
f
*et'f.
.
"
.
earol C. McCrory (pro se)
Brenda $. Clark
(pro se)
fo
,{.J,-r6n"
tr";
r,,ti
cdt
'NC
*f&
*? tr"sa
15

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3:14-cv-00213 #72

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Droits d'auteur :

Formats disponibles

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

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