In North Carolina, marriage is recognized between a man and a woman only. A Durham couple argues that there are no gender restrictions to get a marriage license, and they are taking their argument to court.
In North Carolina, a couple can get a marriage license without getting married. But a couple cannot get married without a license. So far, Richard Mullinax and his partner, Perry Pike, cannot get either.
Last month, the couple tried to get a marriage license in Durham.
"We filled out the application, and the county attorney said: 'Sorry, we're not able to give you a license,'" Mullinax said.
So, Mullinax and Pike sued.
Ministers Ernest Ferrell, of Edgewood Road Baptist Church in Durham, and Gregory Clark, of Guess Road Baptist Church in Durham, are opposing the couple in the legal fight, filing a motion to intervene. Their lawyer said it is first and foremost a moral issue.
"Upholding the meaning of marriage that has been thousands of years, and the entire history of the state of North Carolina, the belief in a man and a woman," attorney Michael Schmidt said.
Cheri Patrick represents Mullinax and Pike. While acknowledging that her clients cannot get married under North Carolina law, she said this is a fight about a license, not marriage.
"They're entitled to a license, and there is no requirement that a valid marriage follow the issuance of a marriage license," Patrick said. "So, whether they get married is irrelevant."
It is very relevant to the ministers, who said they could face lawsuits if they refuse to marry a gay couple with a license.
"This puts them directly in the target of being the object of attack," Schmidt said.
Patrick responded that "if you had a license, and a minister said I'm not going to marry you, you'd go find another minister.
"You don't sue him," Patrick said, "because he has no obligation to marry you. So, your lawsuit would fail."
The
Alliance Defense Fund
is backing the two ministers and their lawyer in their legal fight. That organization's mission is to spread the Gospel through the legal defense and advocacy of religious freedom, the sanctity of human life, and traditional family values.
Durham County Attorney Chuck Kitchen has filed a motion to dismiss the lawsuit, arguing that the couple's attorney had filed it in the wrong court. Kitchen said the lawsuit should have beenfiled in Superior Court, not District Court, because the couple is trying to compel a public official to issue them a license.
Both motions are scheduled to be heard May 10 in Durham County civil court.
The ministers say in their motion that it is "highly improbable, if not impossible" for Kitchen to adequately represent their interests or the interests of the law.
That is because Kitchen advised county commissioners during their decision to offer domestic partner benefits to gay county employees, according to the motion.
Kitchen's involvement in that decision and his relationship with the commissioners "demonstrate favoritism and bias toward acknowledgment of marriage between persons of the same gender byproviding a 'first step' through Durham County's provision of 'domestic partner benefits,'" the motion said.
Kitchen advised county leaders against granting domestic partner benefits, citing an 1805 N.C. law against cohabitation. The county ended up approving the benefits in September.
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