#DayOneNC: History at your Doorstep

October 14, 2014

By Celia Olson

It was a rainy day in Matthews, N.C.  The kind of weather that marks the beginning—and the end—of scary movies.  I was sitting in a Chili’s restaurant, eating a juicy bacon cheeseburger when I got the news: Judge strikes down North Carolina gay marriage ban.  Several advocacy groups had been live-tweeting updates on the status of North Carolina’s same-sex marriage ban throughout the week, so I had been following the Civil Rights Clinic Twitter feed all day, refreshing at 20-30 second intervals, waiting for the precise moment when history would be made.  I had the search keyed up so that every time someone tweeted on the topic I would find out instantaneously: #DayOneNC.  And so, at just after 5 PM on Friday night, I found out that same-sex marriage is now legal in North Carolina.

As far as I know, there haven’t been any reports of catastrophic world-ending events or activity since Friday night.

But let me back up and set the stage for you.

As recently as two weeks ago, same-sex marriage was only legal in nineteen states and the District of Columbia.  Of those nineteen states, three states legalized same-sex marriage by popular vote, eight by state legislature, and eight by court decision.[1]

This seems crazy considering that as of right now, 8:15 AM on October 14, 2014, same-sex marriage is legal in 30 states.

The tides turned last Monday, October 6, 2014, when the United States Supreme Court—in unexpected fashion—declined to decide whether states can ban same-sex marriage by rejecting appeals in cases involving five states.  All five states (Virginia, Oklahoma, Utah, Wisconsin, and Indiana) had lower court rulings that struck down same-sex marriage bans.  Immediately, those five states reverted back to the lower courts’ binding precedent, effectively legalizing same-sex marriage.  In the span of one week, six other states followed, all of which were bound by the regional federal appeals court rulings that had struck down other bans.[2]

So what does this mean for North Carolina?

North Carolina, along with Alaska, West Virginia, Nevada, Idaho, and Colorado, have since legalized same-sex marriage through subsequent court rulings, bringing the total states with legal same-sex marriage to thirty.  Even more are expected to follow in the upcoming weeks.[3]

Amendment One, North Carolina’s ban on same-sex marriage, went into effect during a Republican primary in May of 2012 when it was approved by a majority of voters.[4]  On Friday, October 10, 2014, U.S. District Court Judge Max Cogburn struck down Amendment One, citing the controlling Fourth Circuit Court of Appeal’s case, Bostic v. Schaefer, as precedent.[5]  Bostic v. Schaefer involved two same-sex couples: one couple was denied a marriage license in Virginia, and the other couple’s valid California marriage license was not being recognized in Virginia.[6]  They were successful in their fourteenth amendment claim at the trial court level with strong wording by the presiding judge, whose decision was later affirmed by the 4th Circuit:

“A spirited and controversial debate is underway regarding who may enjoy the right to marry in the United States of America. America has pursued a journey to make and keep our citizens free. This journey has never been easy, and at times has been painful and poignant. The ultimate exercise of our freedom is choice. Our Declaration of Independence recognizes that “all men” are created equal. Surely this means all of us.” – Virginia Eastern District Court Judge Arenda L. Wright[7]

In North Carolina, with Judge Cogburn’s ruling, same-sex marriage could begin immediately—and it did.  In Buncombe County, the Register of Deeds stayed open an extra two hours Friday night to ensure that every couple who had been waiting in line could get their marriage license.

Amy and Lauren first in line in Buncombe County!  Photo courtesy of the Campaign for Southern Equality Twitter Feed.

Amy and Lauren first in line in Buncombe County!  Photo courtesy of the Campaign for Southern Equality Twitter Feed.

In Mecklenburg County, the first same-sex marriage license was granted at 8:10 AM on October 13, 2014, to Terrence Hall and Christopher DeCaria.[8]  Unfortunately though, the morning was not all peace, love, and rainbows.  Protesters gathered at the courthouse by 9 AM, yelling at the waiting couples that they were “going to hell.”[9]  Some protestors were asked to leave, while some remained, silently holding signs.  Despite the negativity, 62 couples were able to successfully receive marriage licenses in Charlotte—and others were even married right there at the courthouse!

The scene outside the Mecklenburg Courthouse in uptown Charlotte.  The Mecklenburg Register of Deeds said that yesterday was the most marriage licenses ever issued in his county in a single day.

The scene outside the Mecklenburg Courthouse in uptown Charlotte.  The Mecklenburg Register of Deeds said that yesterday was the most marriage licenses ever issued in his county in a single day.

Whether you are straight or gay, if you think this does not affect you—you are wrong.  A recent study conducted by The Williams Institute estimated that with the legalization of same-sex marriage, North Carolina stands to add $64 million to the state and local economy over the next three years due to the increase in weddings being performed in-state.  What same-sex marriage does not affect are the pre-existing and future marriages of heterosexual couples.  Believe it or not, they still will hold valid marriage licenses.

Allowing everyone, regardless of their gender, race, sexual orientation, etc., to receive equal rights under the law is the hallmark of the civil rights movement in the United States.  Thank you, North Carolina, for stepping up and standing on the right side of history.

[1] http://gaymarriage.procon.org/view.resource.php?resourceID=004857.

[2] In 30 states – AK, CA, CO, CT, DE, HI, ID, IA, IL, IN, ME, MD, MA, MN, NC, NH, NJ, NM, NV, NY, OK, OR, PA, RI, UT, VA, VT, WA, WV and WI, plus Washington, D.C. – same-sex couples have the freedom to marry. http://www.freedomtomarry.org/states/.

[3] In an additional five states (Arizona, Kansas, Montana, South Carolina, and Wyoming), federal appellate rulings have set binding precedent in favor of the freedom to marry, meaning the path is cleared for the legalization of same-sex marriage there as well.  Id.

[4] http://ballotpedia.org/North_Carolina_Same-Sex_Marriage,_Amendment_1_(May_2012)

[5] http://www.southernequality.org/wp-content/uploads/2014/10/Cogburns-order.pdf

[6] Bostic v. Schaefer, 760 F.3d 352,  (4th Cir. 2014).

[7] Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) (language comes from the lower court’s order granting summary judgment to plaintiffs).

[8] http://www.newsobserver.com/2014/10/13/4230114_first-same-sex-marriages-performed.html?rh=1

[9] http://www.charlotteobserver.com/2014/10/13/5238996/gay-couples-line-up-early-monday.html#.VDwVl_ldXkU


CSL Students Hear Supreme Court Oral Arguments During Spring Break

April 11, 2013

This year the Supreme Court oral arguments for the California “Prop 8” case, Hollingsworth v. Perry, and the DOMA case, U.S. v. Windsor, coincided with Charlotte School of Law’s Spring Break.  Caleb Newman, a 2L, and Adria R. Crannell, a 3L, had the rare opportunity to attend the oral arguments in Washington, D.C.

Witnessing History Evolve, Maybe

By: Caleb Newman

Photo Credit: Caleb Newman

Photo Credit: Caleb Newman

Last week, I was one of ten fortunate students from our school to travel to the Supreme Court of the United States to observe oral arguments in Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, the DOMA case. The issues in these two cases have been discussed and belabored by the news media on television and the internet, pastors in the pulpit and during prayer sessions, students in classrooms and symposiums and forums, politicians on the campaign trail and during press conferences, and social activists on television shows and social media websites. But at the end of the day (or, rather more appropriately, at the end of the Court’s term), the Justices will have the final word.

There has been much speculation regarding the anticipated outcome of Prop 8 and DOMA. Will the Justices even reach the merits of Hollingsworth, instead kicking the case on Article III standing grounds? Will the Justices find that the petitioners have Article III standing and find that there is a fundamental right to same-sex marriage? Will the Justices employ a rational basis review, or some sort of heightened scrutiny? Has DOMA met its end?

Photo Credit: Caleb Newman

Photo Credit: Caleb Newman

Listening to the Justice’s questions and the points they were trying to make during oral arguments last week, it was clear how some Justices are likely to stand on some of the issues: Justice Kagan’s reading of the House Committee Report quoting “moral disapproval” of homosexuality; Justice Kennedy’s thoughts on the Prop case being improvidently granted; Justice Ginsburg’s dismissal of the theory that children “do best” with heterosexual parents; Justice Alito’s statement that same-sex marriage and civil unions are “newer than cell phones and the internet;” and Justice Scalia’s assertion that in order to find a law unconstitutional there must be some sort of “start date” for the unconstitutional law.

I am in no position to predict an outcome of these cases nor will I attempt to answer the questions above. However, standing outside of the Court on Tuesday and Wednesday made me realize that there are millions of Americans who have a deep, personal stake in the Court’s outcome. Seeing the hundreds of people waving signs, locking arms, engaging in dialogue, and marching down the street chanting and singing caused me to develop a deeper appreciation and respect for the Court.

Photo Credit: Caleb Newman

Photo Credit: Caleb Newman

I think our founding fathers would have been proud to see the peaceful yet powerful demonstrations on First Street last week. And until the end of June, when the Court is likely to announce its opinion in these two landmark cases, Americans will continue the debate that has raged on for decades. But as one commentator remarked, “The right to same-sex marriage will not be achieved by amicus briefs or court opinions, but rather by time that will pass by allowing Americans to see that this fundamental right is not destructive as some believe.”

Hoping to Witness History

By: Adria R. Crannell

Last Tuesday, I was lucky enough to gain entrance to the Supreme Court during oral arguments for Hollingsworth v. Perry, also known as “Prop 8.” I was spending my spring break in Washington, D.C. for an internship at the National Legal Aid and Defender’s Association and was encouraged to spend the morning at the Court. I heard that people were lined up as early as Saturday afternoon for Tuesday’s arguments, so I feared I would not be able to get in. Walking from the metro stop just before 8am, I could see the line already formed down the block. There was a group offering coffee, bagels, and signs, I grabbed a bagel and a bright yellow sign with three “stick-figure” couples; two men, two women, and one man, one woman. I made pleasant conversation with the folks in line around me, including a man from Utah who helped write one of the amicus briefs for the case, a mother from Michigan whose son just graduated from Cooley Law School, and a lesbian couple, one of whom was attending law school in Rhode Island. A separate line for Wednesday’s arguments on the Defense of Marriage Act (DOMA) had already formed.

Photo Credit: Adria Crannell

Photo Credit: Adria Crannell

As we speculated on the outcomes of the cases, a parade of ministers and congregants came through singing “This Little Light of Mine,” passing out PRIDE flags, and carrying signs encouraging the Court to rule in favor of gay marriage. With the exception of the Westboro Baptist Church, there was nary a dry eye in line. Although there were many clever and powerful signs, my favorite was the one that said “Mawage is what bwings us togeva today,” in a nod to the classic 80’s film, The Princess Bride.

Photo Credit: Adria Crannell

Photo Credit: Adria Crannell

As I was handed a little yellow ticket granting me three minutes of viewing time in the back of the Supreme Court, I was filled with excitement like a child on Christmas morning. I couldn’t believe I was one of the lucky ones. I was positively beaming at having the opportunity to be present, even for a short time, in the Court for what, I hope, turns out to be one of two landmark decisions. My mind was racing, trying to take everything in; I had turned my Facebook newsfeed into Twitter, posting near-constant updates, both so I could share one of lifetime’s greatest privileges with friends and family, and also so I wouldn’t forget anything. Around 10:45 a.m., midway into the day’s two-hour arguments, after going through security, twice, we were led to a small section in the back of the Court, behind red velvet curtains.

Due to the curtains, I was not able to see every Justice and wasn’t always sure who was speaking, but I was able to see Justice Scalia as he repeatedly hounded Theodore Olsen, the attorney challenging Prop 8, with the question of “when did it become unconstitutional to prohibit gay marriage?” The two bantered back and forth with Olsen attempting every maneuver the English language allowed to avoid putting a designation on when, ultimately stating he didn’t know. With that, my time was up and I was escorted out of the back room.

Photo Credit: Adria Crannell

Photo Credit: Adria Crannell

My thoughts still swirling, in awe that I was able to be present for an argument in front of the Supreme Court, to see some of the Justice’s whose words I have spent the last three years reading, to hear the questions and answers that will later become another decision read by future students, to take in as much as possible while trying to apply what we discussed in Constitutional Law just the week before, feeling my law school career boiled down to three minutes in which I hope to have witnessed history.


Election Day: The President, the Supreme Court, and the Cost of Free Speech

November 6, 2012

“[The] government of the people, by the people, for the people, shall not perish from the earth.” – Abraham Lincoln, The Gettysburg Address, 1863

“Corporations are people, my friend” -Mitt Romney, Iowa State Fair, 2011

Free speech has historically functioned as a bedrock for self-expression and empowerment of the people.  A series of close Supreme Court decisions has changed the nature and balance of this right, resulting in more speech for some and less for others.  The next president will most likely have the opportunity to appoint one or more Justices to the Court.  As we approach this presidential election, whose winner will likely determine the Supreme Court’s direction for some time, we must consider that this essential element of democracy is in danger.  Our union survived the Civil War, but can it survive a corporate takeover?

Like many of our principles and rights, the idea and practice of freedom of speech has evolved. Free speech, as a right, has constricted and expanded since we adopted the Bill of Rights as part of our constitution.    In the mid-1930s, free speech, as we have come to understand it, was established by the Supreme Court and maintained through the mid-1970s as a fundamental component of American democracy.

Since the mid-1970s, however, the Court has unjustifiably shaken this constitutional and cultural understanding.  Coincidentally, the Court has had a conservative majority since 1969.  During this time, the Court expanded corporate, business, and wealthy people’s constitutional speech, while restricting the speech most available to people of ordinary means.  The Court did this, most notably, by instituting the principles that money is speech and corporations are people!

Money Is Speech and Corporations Are People

Prior to 1976, well established First Amendment laws allowed limits on campaign financing because: (1) limits were imposed on money and not directly on speech; and (2) these limits were not total prohibitions on money but, rather, limits on amounts of money.

The Court went about removing the first obstacle to unlimited campaign financing by ruling in Buckley v. Valeo that money is speech; therefore, limits imposed on money are essentially limits imposed on speech.  They then set in motion the removal of the second obstacle, limits on amounts of money, by determining that government may not limit the quantity of protected speech.  This means that limits on the quantity of speech are treated the same way courts have handled complete prohibitions of speech–with the highest level of constitutional protection–and, remember, money is speech.

Viewing speech in this way makes for an attractive argument, as it reinforces the traditional belief that government should not dictate the quantity or intensity of speech.  This supports the idea that limiting the quantity of speech suppresses some measure of speech.  However, the main reason to reject extending heightened constitutional protection to unlimited quantities of money (ahem) speech is ignored: When money is defined as speech and that “speech” is unconstrained, the “speech” of the wealthy drowns out the voice of the common person.  In matters of public debate, the Court has given an almost infinitely large megaphone to one side, and one side only.

In the Buckley decision, in effect, the Court began to really expand constitutional speech rights for persons of means, such as wealthy persons and corporations.  This culminated in the much-debated 2010 case, Citizens United v. Federal Election Commission, which further favored the expansion of the free speech rights of the wealthy by declaring that the government could no longer restrict independent political expenditures by corporation and unions.  These decisions radically diverged from the text and purpose of the First Amendment, now confirming that the person –who is a corporation, is allowed speech–which is money!

But Not All Money/Speech Is Equal

While courts have been expanding the more expensive forms of speech, culminating in ridiculous acts masquerading as free speech, such as massive anonymous contributions to Super-PACs, many limits have been placed on the amount of speech where speech costs less.  Limits placed on non-monetary speech include determining the number of picketers or demonstrators, the number of permits for demonstrations and parades, the level of amplifiers, and the amount and size of protest signs.  The Court justified this in Frisby v. Schultz by considering whether the quantity allowed is “ample” or if more quantity is “necessary to convey [their] message.”  However, courts do not apply this same standard to campaign finance cases and they seem to be oblivious to the hypocrisy of limiting the number or picketers while removing limits on campaign finance.

Restricted Political Speech: The Time, Place, and Manner Doctrine

The Court also has a history of using “reasonable” time, place, and manner restrictions to control speech when it jeopardizes government functions or social interests.  This includes restrictions, such as noise limits in the middle of the night or the classic prohibition of yelling “fire” in a crowded theater.  I agree that some restrictions may indeed be necessary, but the modern Court has expanded the time, place, and manner doctrine so much that lower courts and municipalities are now using the doctrine as a basis for confining First Amendment protected demonstrations, and to selectively restrict the quantity of speech.

Public Property, But No Public Discourse: Public Forum Doctrine

The public forum doctrine is another barrier that the Court has used to limit speech of those with ordinary means.  In 1939, the Court ruled in Hague v. CIO that certain public areas, such as sidewalks and parks are open to free speech regardless of that speech’s point of view and that it is constitutionally forbidden to limit access.  The Court expressly stated, “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.  Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens.”

In the 1980s the Court began to use the doctrine to redefine the concept of a public forum by instituting a threshold for speech.  They rejected protected speech in open, public areas, arguing that speech was not the “principal purpose” of the public space at issue.  This makes no sense.  Speech is rarely the principal purpose of a public facility.  The primary purpose of a meeting oak is to turn sunlight into food so that acorns can be produced, not as a locus for public speech.  We, as a society, have made a constitutional, social, and cultural commitment to freedom of speech, rooted in a traditional understanding of the purpose of speech as a means to further and promote democracy.  That is why public forums have been places of free speech, not because it was the “primary purpose” of the forum.

Appointer-in-Chief

The Court’s modern interpretation is not completely for or against free speech, but, rather, for expanding some speech–specifically speech rights available to very wealthy people, corporations, and businesses, while for limiting some speech–particularly the variety more accessible to the ordinary person.  The Court, beginning with the Buckley decision, set us in this direction by declaring, without a coherent explanation or consistent approach, that money is speech and that government may not limit the quantity of protected speech.  The recent Citizens United decision has expanded and reinforced this idea by declaring that government may not place limits on corporate and union campaign expenditures.  Is this the right track or intent of free speech rights?

The Supreme Court will likely have several vacancies during the next Presidential term.    One presidential candidate’s party has clearly demonstrated a will to expand “speech” of the extremely wealthy time and time again.  While the other candidate has the opportunity to make appointments that could lead to a liberal majority in the Supreme Court for the first time since 1969.  Who we elect as President will determine who is appointed, and that one determination will dictate how free speech rights are interpreted for a very long time; “of the corporations, by the corporations, for the corporations …” just doesn’t have the same ring.


Brandy Hagler is a third year student at Charlotte School of Law.  She is the student chapter President of the American Constitution Society and the student chapter Co-Chair of the National Lawyers Guild.  She is a member of the Civil Rights Clinic at Charlotte School of Law.  She was an advocate for free speech rights during the 2012 Democratic National Convention, organizing National Lawyers Guild efforts in Charlotte, NC.


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