Next steps for gay civil rights in North Carolina

I don't know that I would classify O'Reilly, Coulter, and LImbaugh as people in positions of power in the same manner as Bush, Kerry, McCain, or Kennedy. The former are paid commentators and have never been elected to public office. If the conservative talking heads have more of a listenership (I don't know if they do or not) then I think it says more about the listeners than the talkers.

I dont' think Fox news, Rush Limbaugh, or Air America can really change how anyone thinks--they only reinforce what people want to believe anyway. Their style doesn't permit a thoughtful discussion of the issues, and that is how people's minds get changed.

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How is this "majority" suppose to do that? Too frequently they're caught sitting on their butts not caring about much anything until they feel it impacts them directly.

I've heard Cambridge, Mass. called the Chapel Hill of the North.

Now that they've 'one-upped' the real Chapel Thrill, do you know anyone that's headed North to get hitched?

Let's see, how many right-wing extremists in positions of power can we think of? Bush, Delay, O'Reilly, Limbaugh, Coulter, the Washington Times, etc. Now how many left-wing extremists? ...... .... ... . . .. .... I don't know, I'm stumped. It's particularly funny to see right-wingers take a break from talking about how Islam is the religion of beheading and carpet bombing Fallujah to call Air America "hate radio."

there are extremists on both sides of the aisle. What the silent majority of both parties need to do is not allow those folks to define the parties' agendas and platforms.

I must take exception to your comment, Anita. I sometimes wish there were "extremeists" on the left side of the aisle, but that's just a pipedream.

I have absolutely nothing useful to say. I just want to ask-who would win in a fight: Reading Gaol, or Birmingham?

I'll leave now.

which birmingham? ballad of birmingham?

I've really enjoyed reading this thread. Sorry I haven't participated. It's been a crazy week.

My position is that to be the best, equality-loving Councilmember I can be, for both the citizens of Chapel Hill and town employees, I need to be able to treat all legally married people the same. DOMA stands in the way.

If your agenda is to get marriage licenses issued in Orange County, and the Reg of Deeds says she'd violate the law if she did(the law being DOMA)--then get rid of DOMA. How is her response any different than Chapel Hill or Carrboro's Human Resource department's response that they wouldn't be able to recognize a marriage license for the same reasons? These people aren't the villians, the statute is. We should be continuing to collect examples of how same-sex married couples will be discriminated against when they move to our community because of the manner in which this statute operates to restrict our (government) response. People relate to this issue more vicerally when they know of stories of specific acts of discrimination. Melissa Weiss spoke at our forum on Wed, and she had a great story about how her legally obtained Toronto issued marriage license wasn't recognized by the CH-Car School System. We need to gather more of these stories. We need to be retelling these stories to whomever will listen. We need to get other communities to add this to their legislative agenda so they can treat similarly situated people the same as well. This has to be an educational campaign as much as anything else. Stories of specific injustice along with the scores of cities and town in NC passing moratorium on execution resolutions is what has made the difference in that movement and it can make a difference in this one too.

More about this issue in the N and O today. Actually not a bad article... http://newsandobserver.com/front/story/3465148p-3079679c.html

And some bad news for those gay couples in NC planning on going to MAssachusetts in May to be wed.

http://newsobserver.com/24hour/nation/story/1252202p-8312814c.html

Some great background for any same-sex marriage debates any of you may get in to can be found in "What is Marriage For?" by E.J. Graff. It is a social history of marriage and is very fun to read; the writer is a journalist not a scholar.

This is a very simple thought, but in reading an article about Bush's plan to push marriage in public housing, the Heritage Foundation folks were citing all the studies that show marriage leads to better health, longer life, more stuff, etc. So, nu, why is OK to deny something shown to be beneficial to the citizenry? I would think same-sex marriage resisters, if they hear this over and over, would find it an irrefutable reason why the current ban is inequitable.

I don't know any such resisters (or know that I know) but there is a majority (supposedly) out there whose essential sense of fair play could be appealed to.

It looks as though the legislature (thanks to Jim Forrester of my home county) is set to take up debate on approving a referendum to be put before voters this cycle on a consititutional amendment to ban same sex marriage in NC. I've read a number of articles in the local papers about this, but does anyone have any idea about this bill's chances? I assumed they were high until I realized that conservative/moderateDemocrats might mostly vote against it since the referendum might increase the number of right wingers coming to the polls.

By the way, it's disgusting to me that a hard-core Republican like Jim Forrester could say that he supports a less intrusive government and then introduce a bill to restrict individuals' rights in the same breath.

Yes, Rickie it is digusting.

One thing we can do is to support EqualityNC, make them flush with cash during this legislative session and give them money that they can give to the Democratic leadership. Cash has the loudest voice in Raleigh.

I think you're right that Dems are not going to want this on the ballot in November. The effect will only be to increase right-wing Republican numbers at the polls. It won't matter how the Dems vote, new anti-gay amendment voters are much more likely to pull the straight (as if there were any other type) Republican ticket.

I think that Forrester, who's also the new Republican leader now that Ballantine is out, sees the road to taking the House, the Senate, the Mansion and the US Senate seat going over the back of GLBT civil rights.

Give to EqualityNC. Visit their website www.equalitync.org and tell them you want your donation targeted to fighting Forrester's Amendment. Individual contributions don't convey the message as effectively.

That's one thing we can do.

A few local Republicans with Blogs say they favor equal marriage rights...how do you tolerate Forrester and the rest? Is it the perception that Republicans are better stewards of the purse? If so, do we conclude that your wallet is more important to you than knowing you live under a goverment that provides access equally to all its citizens?

quote from Ruby....."The answer lies in the fact that there are two types of laws: just and unjust. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

You can decide for yourself what laws you think are just, what laws are unjust, you can obey just laws and disobey unjust laws, but where your logic fails is that you now demand that someone else disobey a law because YOU think it is unjust. Ms. Pearson may or may not personally support gay marriage, I don't know. If she doesn't perform as you want, then vote against her in the next election and maybe someone else will come into office. However, the woman represents all the voters of Orange country, not just you, and there are probably just as many people who would consider the existing law just and correct as those who don't.

I agree the law needs to be changed, but I support doing it in the manner our government outlines for us, not to let various and sundry people arbitrarily make law. I still think that's generally the best way to run things in this country. No its not 100% but I think it's the best model I've seen, and has generally worked pretty well. I think civil disobedience is a personal decision and should never be pressured onto anyone, especially someone who never promised to be an activist when she was elected. You have a vote, use it to elect someone who wants to take on this issue. Better yet, you have a voice, use it to lobby the people in Raleigh who can change the law once and for all. Let Ms. Pearson do the job she said she would---take care of the deeds office, not be a social activist.

*Sorry for the lousy grammar in my above post, I've been fueling myself on a mind-numbing cocktail of coffee, cigarettes, and aspirin since yesterday evening.*

-Nick

Mark-

Good points. I wonder if Ms. Pearson would be willing to consider at least planning to issue gay marriage licenses at a later date? Has anyone talked to her about this? If not, I feel that it would be possible to find someone who could fulfill all of the duties of the office of Register of Deeds in Orange AND still at least be sympathetic to the idea of gay marriage. What are the requirements for someone looking to run for register of deeds? Should they have a law degree or is it open to anyone?

Nick-

That's a great suggestion. Is anyone on here hooked into the Triangle Freedom to Marry Coalition? It seems like they would be the organization to approach about starting such a fund.

Yeah Rickie, thanks for pointing the TFMC out man.

I just tried to google up the organization, but they don't yet have a webpage and I couldn't find a phone number for them in the directories. I don't know much about the coalition, but as much as I can gather from reading about it in the papers, it's seems to be sort of an ad hoc group group formed from various other social justice advocacy groups. Anyone got some info about if a central office or contact number for this group, or does anyone know who the members are that coordinate the coalition's functions so that we may contact them?

- Nick

I don't say all of this by way of critisizing the Orange County Register of Deeds, Joyce Pearson. I am posting here just to suggest that if she is interested in doing something on this issue, she could.

The Register of Deeds is called upon to interpret both state and federal law (including two Constitutions). I agree that she is not assigned the position of being arbiter of the N C Constitution.

Nevertheless, circumstances arise all the time that compel NC's elected officials to interpret state law without the benefit of the issue having been considered by the N C Courts. I don't know what the NC Courts may have already said about the meaning of Art 1 sec 19. It would be interesting to look at which (if any) cases have cited this provision and what they have said about it. Presumably nothing has been said by the NC Courts about gay marriage.

Let's consider some hypothetical situations for illustration: Would the Register of Deeds also enforce a law that says "Blacks and whites may not marry in North Carolina" ? Of course not, because the US Supreme Court has said in Loving v Virginia that exactly this type of law is (federally) unconstitutional. The Register's oath of office requires her to uphold the constitution of North Carolina and its laws "not inconsistent therewith" - ie uphold laws that are not inconsistent with the constitution.

Now, what if the law said that the Register of Deeds could only record birth certificates for US Citizens? Again, I think you would look at well-established legal prinicples and conclude that it is the Register's duty to ignore a statute of this kind. (Because it is 'incosistent therewith") However, you would be hard pressed to point to just one case that definitively tells you that this law would be unconstitutional. You would have to look at the whole body of Equal Protection law as laid down in about 100 years worth of cases to reach this conclusion.

Still, we would be outraged if the Register proposed to enforce the law, because justice demands otherwise and because we do not need to wait for the courts to tell us this. We know that Orange County birth certificates are for all people born in Orange County, not just US Citizens.

Now, I grant you that the body of law that would be cited to support the interpretation that NCGS 51-1.2 is unconstitutional is less conclusive than in my hypotheticals above, but still . . . look at Roemer v Evans (reversal of Colorado State Constituional amendement prohibiting local governments from adopting gay civil rights ordinances). The case reads this way to me: It is unconstitutional to forestall the government from granting protected status to an oppressed minority group SIMPLY BECAUSE THE STATE WISHES TO FURTHER OPPRESS THAT MINORITY GROUP. That is by no means a quote from the case.

The same principle ought to apply to the NC Defense of Marriage Act (ie NCGS 51-1.2). The purpose of the law was to oppress gay people; like Amendment 2 in Colorado, it was adopted out of spiteful feelings toward gays.

I can understand that Registers of Deeds across NC do not want to violate their oaths of office and that they may feel that is not so clear that NCGS 51-1.2 is unconstitutional. But how about this, some Register of Deeds with some courage and passion for this issue should declare his/her intention to start issuing same sex licenses per my argument above and that these licenses will be issued starting August 1, 2004. I have a feeling that someone will seek an injunction to prevent it from happening. In this way, a Register of Deeds could advance this issue without violating his/her oath of office. And the Register can be on the just side of this issue without actually issuing a license (probably).

Other ideas:

1. Start lining up couples to go up to the Register of Deeds's office and make their applications. Obviously, the more people standing in line, the more likely pressure will be brought to bear, even if all the applications are denied. There'd be press coverage, certainly.

2. Get a couple or two to take their denials and file suit in Orange County under an equal protection theory.

3. Picket the County office building.

4. Do something -- anything -- other than making one measely phone call to the office.

5. Get someone to announce that they're going to run to defeat Joyce Pearson in 2006. (This raises the specter of a contested race, and therefore campaign contributions, and we know who'll be lining up to hand over money -- developers, builders, investors, and attorneys, all of whom might like some influence in the Register's office. Trade-offs.)

6. Get one of the couples who got married in San Francisco to make some sort of legal application that depends on their married status -- for instance, claiming tenancy in the entirety on their house. A denial by the Register of Deeds would raise a different constitutional issue, I think.

7. Devise some novel legal theory to argue that counties and municipalities have the authority to determine their own criteria for issuing marriage licenses. (I'm grasping at straws here.)

I'm fresh out of ideas.

The Chapel Hill Herald editorial board wrote a very good column about Kleinschmidt's petition today that I was happy to read.

http://www.heraldsun.com/opinion/chhedits/57-462976.html

Basically, it pointed out what Mark Chilton and Duncan have already hit on: Raleigh's decision to use the powers granted to them by DOMA is nothing more than flouting the preexisting laws explicitly stated in the state's constitution and denying the constitutional precedence over the relatively new same-sex marriage ban. I'm WAY far from being an authority on law, but as best as I can judge there seems to be reasonable legal fodder for DOMA opponents to approach the courts with.

Marks (C & K), y'all are lawyers, do you know of anyone around here or elsewhere that has started a grassroots legal fund to aid same-sex couples that are challenging the current statute? What would need to be done to get the ball rolling on something like that for Orange County? I'll carry a sign or offer an ineloquent riff in favor of equal marriage rights should I have the time and opportunity, but I think some sort of citizens fund that can buoy these folks' struggle with dollars would be a great help to the plaintiffs and an easy way for people with little time to make a contribution. I can go a couple of weekends without visiting the multiplex, so I'd be more than happy to toss whatever I can afford to into the coffers.

- Nick

Maybe Article One, Section 19 of the North Carolina State Constitution applies to this situation when it says (among other things):

"No person shall be denied the equal protection of the laws"

And I don't know that anyone is beating up on our Register of Deeds. I think it would be appropriate for her to comment on where she stands on that issue. That is, how does she read Article One, Section 19?

And until the courts hand over to county Registers of Deeds their authority to interpret the constitutionality of state laws, her answer to that question is only academic.

The other question -- How do you interpret the general statutes? -- has been answered:

http://www.herald-sun.com/durham/4-459540.html

"Pearson said she would not go against state law. The office has only received one inquiry and that was by telephone, she said.

"We haven't been approached, but I believe one staff member has had a call, and they asked if we would issue a license. We quoted statute 51 because we are mandated by law ... I would abide by the law and I think that's probably what the registers of deeds are doing across the state," she said."

So since her term doesn't expire for awhile, we're looking at two more years of denied license applications. That's a long time to be complaining about the Register of Deeds's intransigence.

But you're an elected official, too. We don't have to wait to get things going. Let's see some civil disobedience! You could stand up and violate not one, but two parts of the general statutes by issuing your own license and performing same-sex marriages. It's not as if such marriages would be any more or less valid, under the law, than same-sex marriages accompanied by licenses issued by the Register of Deeds.

And if you agree to do it, I'll do it too. And I've neve been elected to anything. (OK, I was president of the state 4-H council.) I give you my word I'll stand up there on the town hall steps, side by side with you, and perform those marriages and suffer the penalties. Just say the word. I might even be able to get us ordained on the internet. I was once a member of the Church of the Subgenius, but I think that's lapsed.

Until then, I'm glad that we've got Mark Kleinschmidt taking charge and trying to get something done.

I want to be very, very clear: I want gay couples to have the right to be married in North Carolina, and to have those marriages legally recognized by the state and sanctified by those empowered to do so, and to have all the rights and privileges of the institution attend to those marriages. And I want it now!

OK, wheww.

Having said that, I wanted to pass this along, so we know what we're fighting against. N.C. Gen. Statute 51-1.2 very emphatically and rudely states that "marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina."

So is it against the law to issue a license for such a marriage in North Carolina? I'm not a lawyer, but this part of the N.C. Gen. Statutes, relating to licenses, seems to indicate it is:

"51-8. License issued by register of deeds.

"Every register of deeds shall, upon proper application,

issue a license for the marriage of any two persons who are able

to answer the questions regarding age, marital status, and

intention to marry, and, based on the answers, the register of

deeds determines the persons are authorized to be married in

accordance with the laws of this State. In making a

determination as to whether or not the parties are authorized to

be married under the laws of this State, the register of deeds

may require the applicants for the license to marry to present

certified copies of birth certificates or such other evidence as

the register of deeds deems necessary to the determination."

Since it was suggested that issuing such a license would not be against the law, I thought I should offer this.

Don't shoot the messenger!

"Bartleby," said I, "I insist that you marry this same-sex couple."

"I prefer not to," he replied.

Ah, Bartleby! Ah, Humanity!

The end. Nice analogy Duncan.

Good luck finding someone to run against her. I think it's a pretty thankless and boring job. The office is entirely a clerical operation, and the Register of Deeds's policy-making functions are pretty much limited to what paperwork you have to fill out to record documents, when that has to occur, and how much you have to pay.

Because abiding by the strict letter of the law with regard to the recording and issuance of legal documents is the essential function of that office, it doesn't surprise me that Pearson has said she would abide by state law if asked. It's part of the culture of that office. It would be nice if she made this exception, but it's not surprising that she won't -- regardless of her politics. They're just not big on making any sort of exceptions in that office, whatever they are. And the nature of the job and the typically unopposed elections for Register of Deeds have not exactly selected for risktakers.

You might as well ask Bartleby the Scrivener to issue the license.

Anyway, it seems to me that the best way to go about this would be the way they've done it in Durham -- apply for the license, get denied,and then go over to the courthouse and file suit. In that case, you'd _want_ the Register of Deeds to abide by the law, so the denied couple would have standing to challenge it. Plus, it seems right to place this issue on the desks of the courts and legislature, who will ultimately decide the issue, and not the desk of a glorified clerk. The Register of Deeds can barely get people to turn in the proper paperwork on time. She has no political capital to push for anything in the policy-making world.

Although I'd think it was really f-ing cool if I heard Joyce Pearson had issued a marriage license to a gay couple, I don't think that would push the debate as far as you think it will. But while we're advocating civil disobedience on the part of our elected officials, I guarantee you that if one of our mayors or council members were to issue their own license and illegally perform a public marriage ceremony, there'd be just as much (if not more) attention paid. They don't have the legal right to marry anyone, gay or straight, but so what? Get Kevin Foy arrested, and we'll have that political ball rolling!

I guess I don't understand the point in criticizing someone who is doing their job and whose only 'fault' is not taking an activist stand for a social movement that has only recently gained momentum. If you don't like her performance, don't vote for her at the next election. But she has no power to make any forward progress on the issue of gay marriage, either locally or statewide. If your goal is to simply express your frustration, she may be as good a target as anyone. But if what you want is to make change, you're going to have to find someone who has some authority to make change--such as the county commissioners, state representatives, or the governor.

I miss the connection between not harassing someone who has no power to change the law with Martin Luther King's call for civil disobediance. The point of civil disobediance is to make change.

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

- Dr. Martin Luther King's "Letter from a Birmingham Jail"

http://almaz.com/nobel/peace/MLK-jail.html

I support your right to vote for someone who is more in harmony with your personal preference for any elected position. And I would support Ms. Pearson's choice (or any other elected official) to be civilly disobedient if that was her choice to do so. I am not going to demand that she be civilly disobedient because I think she should , however.

I still think the best way to ensure that MOST people's rights are respected MOST Of the time is to expect the people who are charged with upholding the law to do so. It can just as easily work to violate someone's rights if we encourage people to pick and choose what laws they like and selectively enforce the law. I want someone that I have elected to make law to do so, not everybody else. I am a strong believer that the Founding Fathers knew what they were doing when they set up the structure about how to make and interpret laws.

That said, we should work hard to elect people who will with courage and leadership change our laws so that any couple who want to be married can do so. I think the current laws are wrong. It's an issue that will be important for me in casting my vote.

I guess I don't understand why it's important to protect the register of deeds office when they are not issuing marriage licenses to gay couples. From my limited understanding of the issue, there is now a lawsuit in Durham County because the register of deeds refused to accept an application for marriage despite the fact that there is no law against two men applying for such a license (they can't be related or less than 18, but those are the only rules governing the application, according to attorney Cheri Patrick). So why is it so taboo to criticize Ms. Pearson for her lack of a stand on a murky subject? I haven't been convinced yet.

I second Ingrid's plea not to make the Register the whipping post on this issue. The Register's responsibility is to maintain documents--not to create or advocate for legislation. Since Chapel Hill has taken active steps to counter some of the state's negativity and today's forum asks people to contact the Carrboro town council, I think we should also be lobbying our county commissioners--but not the Register of Deeds.

Unfortunately, neither the right wing judiciary nor the legislature in this state even hears debates on same sex issues, so at this point it IS up to our local elected officials to push this issue. As so many folks have been saying about this issue, the "silence from North Carolina is deafening". Ask Ellie Kinnaird, who has tried for years to get equal rights bills on to the floor of the Senate for a vote. She can't even get them out of committee so there is not even a dialogue on the issue. On the other hand, bills restricting the rights of gay people make it out of committee and onto the floor much more commonly.

As I said before, I understand that our Register of Deeds has done her job competently, but I don't think it inappropriate to look at electing someone who would push this debate further. There is a role for agitating from both outside and inside the governmental institutions.

Please don't make Joyce Pearson a whipping boy or poster child for this issue. It is not her role to openly flaunt the law. Our public officials cannot pick and choose what laws they want to follow. In fact, as a public employee, I believe it is her job to follow the law and enforce it evenly and fairly without regard to her personal preferences. That gives us all security and safety from arbitrary and capricious behavior on the part of public employees.

I support changing the law to allow same sex unions, but I don't support pressuring a public employee to knowingly violate the law jsut because I personally think she should. Neither should you.

The authority to make and change laws rests with the elected legislative branch of our government. The judiciary is charged to interpret laws and be sure they are enforced fairly and are consistent with our Constitution. Those two entities are where you should be making your voice heard. Heck, I'll help you, but leave the Register of Deeds out of it. She's just doing her job as outlined by the law.

Since the Register (is that what we're supposed to call her? shouldn't it be Registrar?) is an ELECTED official, I think it's perfectly appropriate for her constituents to pressure her on policies which pertain to her official role. http://www.co.orange.nc.us/deeds/

Take your argument and apply it to segregation, Ingrid. Should the public simply not have bothered law sheriffs who were enforcing Jim Crow laws? I think not. If we want them to mindlessly execute the laws they are given, we should make these appointed positions, not elected.