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ACLU Files Additional Challenge to NC’s Amendment One

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Photo: ACLU of North Carolina

Civil Liberties Group Asks Federal Court to Take Action On Behalf of Couples With Serious Medical Conditions Whose Marriages Are Not Recognized by N.C.

GREENSBORO, N.C. - Today the American Civil Liberties Union (ACLU) and the ACLU of North Carolina Legal Foundation (ACLU-NCLF) and the law firms of Sullivan & Cromwell LLP and Ellis & Winters LLP filed a new case in federal court today on behalf of three married, same-sex couples seeking state recognition of their marriages. Because of the serious medical condition of one member of each couple, they are asking the court to take swift action.

The ACLU also sought immediate relief on behalf of one of the couples in the existing Fisher-Borne et al. v. Smith case who have a young child who is being denied critical medical care because North Carolina neither recognizes his mothers’ marriage nor allows both mothers to adopt their child and establish a legal relationship.

“Nothing should delay loving and committed couples from having the security and recognition that comes with marriage,” said Jennifer Rudinger, Executive Director of the ACLU of North Carolina. “For many couples – especially those who have children or one partner who is elderly or ill – the need for marriage recognition is an urgent, daily reality. Without the legal security that only marriage affords, these families are left vulnerable. If they could marry or have their marriages recognized in North Carolina, the law would protect their families in countless ways.”

North Carolina’s ban on marriage for same-sex couples prevents the plaintiff couples from securing hundreds of protections provided in both state and federal law to married couples. If one member of the couple were to die before the state recognizes their marriage, the surviving spouse will be forever denied not only these protections but the dignity that respect from the state affords, such as having one’s relationship acknowledged forever on a death certificate.

"Today's filing not only elevates the voices of more loving and committed North Carolina couples seeking marriage equality, but also seeks a swift legal resolution to the question of whether our state's same-sex couples facing immediate health concerns may avoid daily harm by finally having their relationships recognized," said Chris Sgro, executive director of Equality NC, the state's leading LGBT advocacy organization. "Equality NC applauds the work of the ACLU and ACLU-NCLF and will continue to work in tandem with their legal efforts to get the entire state engaged in this movement for marriage in North Carolina."

The couples in the new case are:

  • Ellen “Lennie” Gerber and Pearl Berlin of High Point, who have been together for 47 years and were legally married in Maine last year. Berlin is 89 years old and in fragile condition. She has been hospitalized three times over the past two years, most recently for having suffered a fall where she hit her head, incurred internal bleeding, and broke three ribs.
  • Lyn McCoy and Jane Blackburn of Greensboro, who have been together for 22 years and were legally married in the District of Columbia in 2011. Blackburn was diagnosed with breast cancer in 2012, and although she is undergoing chemotherapy and other treatments, the cancer has spread to a Stage IV diagnosis.
  • Esmeralda Mejia and Christina Ginter-Mejia of Hickory, who have been together 19 years, have a 7-year old son, and were legally married in Maryland in 2013. Mejia is a decorated retired Army major who served for 13 years, including in Kuwait during Desert Storm, and received a Bronze Star, among other accolades, for her service. She left the Army after being diagnosed with cervical cancer. Four years later, in 1996, she received a second cancer diagnosis for a tumor in her left lung. She has undergone many procedures, including surgery to remove the upper lobe of her lung and three ribs, and a liver transplant. Esmeralda sees doctors regularly, but Christina has been denied family medical leave by her job because their marriage is not recognized in North Carolina. Because Christina is also their son’s sole legal parent, he is not able to receive the family benefits that flow from Esmerelda’s military service, and if Esmerelda were to die before North Carolina recognizes her marriage, he will never be able to receive them.

In 2012, the ACLU filed a federal lawsuit in Greensboro on behalf of six families headed by same-sex couples that challenged the state’s ban on second parent adoption, where one partner in an unmarried gay or straight couple adopts the other partner’s adoptive or biological child. In 2013, the ACLU added an additional claim to that lawsuit that directly challenges North Carolina’s ban on marriage for same-sex couples.

Today, two plaintiffs in the 2012 case, on behalf of themselves and their child, also filed a request for a preliminary injunction. These plaintiffs, Shana Carignan and Megan Parker, were legally married in Massachusetts but their marriage is not recognized in North Carolina. Their 6-year-old son Jax has severe cerebral palsy. Because North Carolina refuses to recognize the legal marriage of Jax’s parents and because North Carolina law refuses to allow both of Jax’s parents to have a legal parent-son relationship , Jax is not receiving the quality of care he could which would dramatically improve his life. Because North Carolina recognizes only Parker as Jax’ mother, Carignan is unable to put Jax on her health insurance.

“Every day that goes by is another day that Jax is not receiving critical medical care,” said Shana Carignan. “Our doctors tell us that the care Jax receives now will determine his overall health for the rest of his life. Although Jax receives Medicaid, he would receive significantly better care if I could put him on my private health insurance plan. It is devastating to know that if the law only recognized what our family already knows – that our son has two parents who love and care for him equally and want to share legal responsibility for his well-being – our son might have very different opportunities in his life.”

Since the Supreme Court ruled that the federal government could no longer refuse to recognize marriages of same-sex couples in the ACLU case United States v. Windsor, eight state bans on marriage for same-sex couples have been held by courts to be unfair and unjustifiable under the U.S. Constitution.

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