Pending Marriage Equality Cases

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North Carolina

Updated April 28, 2015
  • Berger v. Fisher-Borne (formerly Fisher-Borne v. Smith and Gerber v. Cooper)

    Case Type: Seeking freedom to marry for unmarried same-sex couples and recognition of marriages entered by same-sex couples in other jurisdictions, Second-parent adoption is also being sought
    Counsel: ACLU; Sullivan & Cromwell LLP; Ellis & Winters LLP
    Federal Circuit: 4th, now at Supreme Court
    Status: The Fisher-Borne v. Smith case was a second-parent adoption case, but it was amended post Windsor to raise marriage claims.  It subsequently was consolidated with the later-filed Gerber v. Cooper case.  On 10/6/14, the district court filed an order stating that the "Virginia marriage ban declared unconstitutional in Bostic is indistinguishable from the North Carolina prohibitions challenged in this matter."  Status reports were filed on 10/7/14 from the parties agreeing that Bostic is binding and that the adoption claim should be dismissed as moot.  On 10/9/14, however, two North Carolina legislators filed a motion to intervene.  That motion was granted on 10/14/14, but only for the purpose of lodging an objection and preserving that objection to the court’s application of Bostic for purposes of a possible effort by the legislators to appeal.  On 10/15/14, the court issued an amended order declaring that North Carolina’s constitutional amendment and statutes banning marriage for same-sex couples violate the U.S. Constitution.  Same-sex couples can now marry in the state and have their out-of-state marriages recognized by the state. This decision was appealed on 11/12/14 by the legislators.  On 11/21/14, a cross-appeal was filed by the Fisher-Borne and Gerber plaintiffs.  On 1/9/15, the legislators filed a petition for certiorari before judgment with the Supreme Court.  On 1/30/15, respondents filed a waiver of the right to respond.  On 3/4/15, the petition was distributed for consideration at the Supreme Court’s 3/20/2015 conference.  On 3/18/15, the Supreme Court requested a response to the cert. petition, which was filed on 4/17/15. On 5/5/15, the case was distributed for the Supreme Court’s conference of May 21, 2015. The reply of petitioners Phil Berger, President Pro Tempore of the North Carolina Senate, et al. was filed on 5/6/15.  
  • Gerber v. Cooper*; Consolidated with Fisher-Borne v. Smith and General Synod of the United Church of Christ v. Cooper

    Case Type: Seeking only recognition of marriages entered by same-sex couples in other jurisdictions
    Counsel: ACLU; Sullivan & Cromwell LLP; Ellis & Winters LLP
    Federal Circuit: 4th
    Status: Filed 4/9/14 on behalf of three same-sex couples married in other jurisdictions, one of whom is elderly and the others of whom face medical needs to have their marriages promptly respected.  A motion for a preliminary injunction also was filed 4/9/14.  Responses were filed 4/28/14.  Briefing was ordered to address whether consideration of the motion should be stayed pending the 4th Circuit’s decision in Bostic. Plaintiffs filed their consolidated memorandum of law in support of their motion for preliminary injunction and opposition to defendants’ motion for a stay on 5/5/14.  Defendants filed a motion to dismiss on 5/6/14.  Defendants’ reply brief was filed 5/22/14.  Defendant Thigpen answered the complaint on 5/30/14.  On 6/2/14, Magistrate Judge Peake recommended that the stay be granted pending the 4th Circuit's decision in Bostic v. Schaefer.  Plaintiffs filed their objections to the magistrate’s ruling on 6/13/14.  On 6/16/14, defendant Catawba County filed its answer and affirmative defenses.  Defendants filed their responses to plaintiffs’ objections on 6/30/14.  On 7/30/14, the judge ordered briefing from the parties on the impact of the 4th Circuit’s Bostic decision on this case.  Briefing in response to the 7/30/14 order was filed by all parties on 8/13/14.  On 8/27/14, the court stayed the proceedings pending termination of the stay granted by the Supreme Court in McQuigg v. Bostic.  On 9/10/14, plaintiffs filed a motion for reconsideration of this order; responses were filed 10/6/14.  That same day, the Supreme Court denied the petitions for certiorari from the Bostic case, letting stand the 4th Circuit’s decision finding the marriage bans unconstitutional. The district court then filed an order stating that the "Virginia marriage ban declared unconstitutional in Bostic is indistinguishable from the North Carolina prohibitions challenged in this matter. (See subsequent entries for Fisher-Borne , which apply equally to this case.)
  • General Synod of the United Church of Christ v. Cooper*; Consolidated with Fisher-Borne v. Smith and Gerber v. Cooper

    Case Type: Seeking only the freedom to marry for unmarried same-sex couples
    Counsel: Arnold & Porter LLC; Tin Fulton Walker & Owen
    Federal Circuit: 4th
    Status: Filed 4/28/14.  Includes free exercise of religion and expressive association claims on behalf of church and clergy plaintiffs, as well as due process and equal protection claims on behalf of same-sex couple plaintiffs.  Plaintiffs simultaneously filed a motion or a preliminary injunction.  On 5/27/14, Defendants filed a motion to stay pending the 4th Circuit’s decision in Bostic v. Schaefer.  On 6/3/14, plaintiffs filed an amended complaint.  On 6/10/14, defendants filed responses to the motion for a preliminary injunction.  On 6/13/14, plaintiffs filed an opposition to the motion for a stay.  On 6/20/14, plaintiffs filed their reply brief on their motion for a preliminary injunction.  On 6/24/24, defendants filed their reply in support of their motion for a stay.  On 7/1/14, plaintiffs filed a request for oral argument of the preliminary injunction and stay motions.  On 7/18/14, defendants filed a response in opposition to the motion for oral argument.  On 8/12/14, the court stayed this case.  On 8/25/14, the court issued a further order staying the proceedings pending the Supreme Court’s disposition of the cert. petition in Bostic.  On 9/8/14, plaintiffs filed a motion to lift the stay.   On 9/24/14 and 9/26/14, defendants filed responses to this motion; replies to these responses were filed 10/6/14.  On 10/10/14, the court granted plaintiffs’ motion, ruling that North Carolina’s ban on marriage by same-sex couples is unconstitutional, and enjoining its enforcement.  Same-sex couples may now marry in the state.  The appeal by Thigpen and Tillis was docketed 11/10/15.  The appeal was been consolidated with Fisher-Borne and Gerber cases on 12/10/14.  (See entries for that case, which applies equally to this case.) 
  • McCrory & Clark v North Carolina*

    Case Type: Seeking freedom to marry for unmarried same-sex couples and recognition of marriages entered by same-sex couples in other jurisdictions
    Counsel: Pro se
    Federal Circuit: 4th
    Status: Filed 3/10/14, to obtain recognition of plaintiffs’ out-of-state marriage, but complaint also seeks to broadly challenge both the NC amendment and NC statute that ban marriage between same-sex couples.  Defendants’ answer was due 6/10/14, but on 5/19/14 the case was ordered stayed pending the 4th Circuit’s decision in Bostic v. Schaefer.  On 8/15/14, plaintiffs filed a motion to lift the stay and to grant summary judgment in their favor in light of the decision in Bostic.  On 8/25/14, the court denied that motion and again stayed the case pending the Supreme Court’s disposition of Bostic.  On 10/10/14, the Court dismissed this action as moot on the ground that the relief sought had already been granted in General Synod case.

* Cases filed, or that newly included a marriage claim, since the decision in Windsor are marked with an asterisk.