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Religious Tolerance logo


Seeking same-sex marriage (SSM) in North Carolina

Part 11:
2014-OCT-05: Status of SSM in North Carolina.
OCT-06: Ruling by the U.S. Supreme Court and
its impact in North Carolina and elsewhere.

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This topic is a continuation from the previous essay

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On this website, the acronym "SSM" means same-sex marriages;
"LGBT" refers to the Lesbian, Gay, Bisexual and Transgender/transsexual community;
"marriage equality" refers to state laws and a state constitution
that allows both opposite-sex and same-sex couples to marry.

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wedding rings 2014-OCT-05: Status of same-sex marriage in North Carolina and in the rest of the U.S.:

As of OCT-05, same-sex couples could routinely obtain marriage licenses and subsequently marry in 19 states and the District of Columbia. At that time, about 45% of Americans lived in areas of the country where same-sex couples could marry. There were 31 states where same-sex marriage was not permitted due to statutes passed by their state Legislatures or, more likely, by amendments to the state Constitutions passed by the voters. Most of these amendment date back to 2004 to 2008 before polls indicated that most voters in the U.S. favored marriage equality. North Carolina was one of these 31 states. On that date, there was at least one active lawsuit in each of these states attempting to legalize same-sex marriage.

Three-judge panels at a total of three U.S. Circuit Court of Appeals had recently issued rulings for four of these lawsuits. Three decisions were by a 2:1 vote; the fourth was unanimous. All four rulings were in favor of marriage equality and were appealed to the U.S. Supreme Court. Of particular interest to North Carolina was a ruling by a three-judge panel in the 4th U.S. Circuit Court of Appeals upholding a Virginia District Court decision that legalized SSM in that state. Virginia subsequently appealed that ruling to the U.S. Supreme Court. More details. The ruling was stayed so that same-sex couples could not actually obtain marriage licenses and be married.

Media commentators at the time debated how the U.S. Supreme Court would respond to the decisions of the three Circuit Courts of Appeal. The Justices could grant certiorari -- decide to accept an appeal -- of none of the cases, of one case, or of a group of cases. The near universal consensus was that the high Court would select one or two cases, announce their decision to grant certiorari in the fall of 2014, hold hearings in the Spring of 2015, and announce their ruling in late 2015-JUN. Commentators speculated whether the high court's eventual decision would make marriage available to same-sex couples across the entire country. In 1967. the court did just that in another marriage-related case, Loving v. Virginia. The high court then made interracial marriages available throughout the U.S. At the time, 72% of adults in the U.S. opposed interracial marriage. Also, 48% felt that marrying a person of another race should considered a criminal act and prosecuted.

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2014-OCT-06: The surprise decision by the U.S. Supreme Court that indirectly affected North Carolina and five other states:

This time, the U.S. Supreme Court marched to a different drummer.

On OCT-06, the high Court announced that it would not grant certiorari to any of the four lawsuits from three Circuit Courts of Appeals. 2 The four lawsuits involved were from five states:

  • Utah and Oklahoma which are under the juridsiction of the 10th Circuit Court of Appeals in the Midwest and West. Other states in this Circuit Court are Colorado, Kansas, New Mexico, Oklahoma, and Utah.

  • Virginia which is under the juridsiction of the 4th Circuit Court of Appeals in the Eastern U.S. Other states in this Circuit Court are Maryland, North Carolina, South Carolina, & West Virginia.

  • Indiana and Wisconsin which are under the juridsiction of the 7th Circuit Court of Appeals in the Midwestern U.S. Illinois is also in this Circuit Court.

Same-sex marriage thus became final and the stays were lifted in all five states involved in the four lawsuits: Indiana, Oklahoma, Utah, Virginia and Wisconsin with the stroke of a pen.

Some minor housekeeping tasks were quickly cleaned up, and same-sex couples in these five states were able to start purchasing their marriage licenses, either on Monday, OCT-06 or -- in the case of residents of Indiana -- on the next day.

Having same-sex marriage suddenly come to five states had never happened before in U.S. history. Same-sex couples could marry in any of 24 states or the District of Columbia. This was very close to forming a majority of jurisdictions in the U.S. that had attained marriage equality. Some pro-marriage equality groups considered that once a majority of states attained marriage equality, and a majority of Americans lived in states with marriage equality, and support for same-sex marriage exceeded 60% then the U.S. Supreme Court would likely make marriage equality the law of the land in all 50 states.

Reactions by the Lesbian, Gay, Bisexual and Transgender community (LGBT) were mixed. There was much joy that marriage equality had come to loving, committed couples in five more states. The Internet was flooded with pictures of many happy couples. Some were holding their marriage licenses; others were getting married; still others were kissing. But the community was also saddened that there was now no possibility that the Supreme Court would rule marriage by same-sex couples to be legal across the entire country in mid-2015.

Religious and social conservatives were generally shocked at this sudden development. There were many references to lawless courts, to rogue judges, and to courts, Attorneys General, and Governors ignoring the will of the people. The latter was a reference to amendments to state constitutions that had banned marriage equality and were now found unconstitutional because they violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. There were calls for Congress to initiate a new amendment to the U.S. Constitution so that these two clauses longer applied to marriages. That would allow the voters in individual states to amend their state constitution to ban marriage for any group that was disfavored by a simple majority of voters, and have their amendments found constitutional by the courts. This is called the "tyranny of the majority." Preventing that was a major concern of the founding fathers of the U.S.

But the affects of the U.S. Supreme Court's decision on OCT-06 went far further than directly affecting five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. It also indirectly affected six more states. When a ruling of a Circuit Court becomes final, it normally becomes applicable to all of the other states under the jurisdiction of that Circuit Court. This would imply that same-sex couples in six other states with same-sex marriage bans, who were also under the jurisdiction of the 4th, 7th, and 10th Circuit Courts, should be allowed to marry. These states are North Carolina, as well as Colorado, Kansas, South Carolina, West Virginia, and Wyoming. These will take a bit of time to sort out, because some of the legislators, Attorneys General and/or Governors in these states are strongly opposed to marriage equality. By OCT-24, the governments of Kansas, and South Carolina were still resisting marriage equality.

The ripple effect of the Supreme Court's decision of OCT-06 is a game-changer, It impacted five states directly. It either has or is expected to bring marriage equality to six other states indirectly. It is also expected to influence additional states as various federal courts take notice of the trend towards marriage equality in their own rulings elsewhere in the country.

As of OCT-24, the Kansas and South Carolina goverments were still resisting the decision of the Supreme Court by defending their same-sex marriage bans.

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How North Carolina and five other states became indirectly affected by the U.S. Supreme Court's decision:

When, as in this situation, a decision by a federal Circuit Court of Appeals becomes final, then the ruling directly affects the state from which the lawsuit originated. That is Virginia in this case. It may or may not also indirectly affect other states under the jurisdiction of the same Circuit Court.

For example, consider a hypothetical environmental lawsuit that originated in Utah and involves a species of fish found only in large salt water lakes. A ruling by the 10th Circuit Court of Appeals that became final would directly affect Utah. However, it would probably not affect the other five states under the jurisdiction of the 10th Circuit Court: Colorado, Kansas, New Mexico, Oklahoma, or Wyoming. That is because those states have no large salt lakes within their borders.

However, since the lawsuit that originated in Utah involved marriage equality, then it would probably affect marriage laws in the other five states over which the 10th Circuit Court has jurisdiction. This is because there is no real difference in same-sex couples among these states:

  • Since about 5% of the newborns in every state will grow up to find that they are gay or lesbian, and

  • Since about another 5% of newborns in every state will find out later in life that they are bisexual, and

  • Since most people are social beings,

  • Then, a small but significant minority of people in every state will fall in love with a member of the same sex, will want to make a lifelong commitment and marry that person.

Thus the legalization of same-sex marriages in Virginia has exact parallels to marriage equality in the three of the other four states which the 4th Circuit Court serves.

It was thus probable that the 4th Circuit Court of Appeals' final decision on marriage equality in Virginia will also be found to be binding to West Virginia, North Carolina and South Carolina. It would not apply to Maryland because that state had earlier legalized same-sex marriage.

When the smoke clears, most observers expect that the direct and indirect impacts of the U.S. Supreme Court's decision on OCT-06 might increase the number of states attaining marriage equality from 19 to about 30. This is a massive change.

Many religious and social conservatives in North Carolina undoubtedly believe that this indirect approval of marriage equality is unfair to them. It will happen simply because North Carolina is under the jurisdiction of the 4th Circuit Court of Appeals. When the boundaries of the 4th and 6th Circuit Courts of Appeals were drawn many decades ago, North Carolina could have easily ended up in the 6th Circuit Court. Then, North Carolina would not have been affected by the decision by the 4th Circuit Court in the Virginia case.

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Discussion of same-sex marriage in North Carolina continues in the next essay

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. "High court ruling may lead to gay marriage in 30 states." USA Today, 2014-OCT-06, at: http://www.usatoday.com/

Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-OCT-13
Latest update: 2014-OCT-24
Author: B.A. Robinson

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