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OFFICE RESEARCH MEMORANDUM
TO: Maria Warren, District Attorney
FROM: Cameron Breither, Intern
RE: Langley v. North Carolina
CASE: 80A957
RE: Due Process Clause and Equal Protection Clause of the Fourteenth Amendment with a
concentration on homosexuality
Statement of Assignment
You have asked me to prepare a memorandum addressing the following questions: Is the North
Carolina General Statute Chapter 51, Article 1, section 12, that states that “marriages between
persons of the same gender are not valid,” invalidated by the North Carolina state constitution?
Does the North Carolina General Statute Chapter 51, Article 1, section 12 violate the Due
Process Clause and Equal Protection Clause of the 14th Amendment of the United States
Constitution?
Issues
Issue I: Under Article I, section 1, of the state constitution is North Carolina General Statute
Chapter 51, Article 1, section 12 invalidated?
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Issue II: Under the Due Process Clause and Equal Protection Clause of the Fourteenth
Amendment of the United States, is the North Carolina General Statute Chapter 51, Article 1,
section 12 unconstitutional?
Brief Answer
Issue I: Yes. The U.S. Supreme Court in Goodridge v. Mass. Department of Public Health,
798 N.E.2d 941 (Mass. 2003), held that “the denial of marriage licenses to samesex couples
violated provisions of the state constitution guaranteeing individual liberty and equality, and was
not rationally related to a legitimate state interest.” Similar to Massachusetts, the North Carolina
state constitution states in Article I, section 1 that “We hold it to be selfevident that all persons
are created equal; that they are endowed by their Creator with certain inalienable rights; that
among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of
happiness.” According to stare decisis, the holding of the Goodridge case should be fully
applicable to North Carolina and the set precedent should prevail.
Issue II: Yes. The Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution states that “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.” The U.S. Supreme Court ruled in Loving v.
Virginia, 388 U.S. 1 (1967), that that the Commonwealth of Virginia violated both the Due
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Process Clause and the Equal Protection Clause of the Fourteenth Amendment by banning
interracial marriage. The court held that “the Fourteenth Amendment requires that the freedom of
choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the
freedom to marry, or not marry, a person of another race resides with the individual and cannot
be infringed by the State.” These same protections can easily be factored in when discussing
samesex marriage and discrimination based on both sex and gender, leaving a great deal of
room to apply the rationale of the Court in Loving v. Virginia to the North Carolina General
Statute Chapter 51, Article 1, section 12.
Facts
The plaintiffs, Matthew Langley and Alexander Davila, both men, were residents of North
Carolina who had been married in April 2010 in Connecticut, having left North Carolina to
evade a North Carolina general statute that bans samesex marriages in North Carolina and state
that marriages performed outofstate will not be recognized. Upon returning to North Carolina,
they were not allowed to file state taxes as married due to North Carolina General Statute
Chapter 51, Article 1, section 12, which 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.” Wishing to fully enjoy the perks of marriage, Langley and Davila
applied for a marriage license in New Hanover County, North Carolina and were denied under
North Carolina General Statute Chapter 51, Article 1, section 12.
Believing that the North Carolina statute was unjust, the couple filed suit against the state
claiming that the statute violated the North Carolina state constitution and both the Due Process
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Clause and the Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution.
Analysis
Issue 1
The rule of law governing equality in North Carolina is Article I, section 1, of the state
constitution which provides, in part, “certain inalienable rights; that among these are life, liberty,
the enjoyment of the fruits of their own labor, and the pursuit of happiness.” Neither the
constitution nor any state statutes go into depth when defining the specifics of these rights. While
there are statues defining the terms and conditions of marriage in the state of North Carolina,
there is no mention if marriage is, or is not, included in these inalienable rights. There is,
however, Massachusetts case law that clarifies these rights.
The Massachusetts case that establishes the standard for marriage as an inalienable right
is Goodridge v. Mass. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). In this case
the plaintiffs were denied marriage licenses because the state of Massachusetts did not recognize
samesex marriages. The plaintiffs sued the state health department and commissioner on the
basis that their exclusion from access to marriage licenses violated Massachusetts law. In ruling
that the denial of a marriage license to the plaintiffs involved a denial of individual liberty and
equality, the court held that the denial of marriage licenses to samesex couples violated Article
CVI of the Massachusetts’ state constitution.
The rule of law defining marriage in Goodridge v. Mass. Department of Public Health is
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so broadly stated that it can be easily applied to any number of marriage equality situations,
including the situation presented in our current case. In our case, the plaintiffs were denied a
marriage license on similar grounds and the North Carolina state constitution Article I, section 1
guarantees similar provisions to those found in Massachusetts state constitution Article CVI.
Therefore, it appears that the denial of a marriage license to Mr. Langley and Mr. Davila was in
direct violation of the North Carolina state constitution.
However, not all marriage denials are in violation of the state constitution’s equality
clause. There are several exceptions. One exception is when the marriage applicant is marrying a
person who is a direct blood relative. This exception can be found in the marriage laws of all 50
states and can be found in North Carolina General Statute Chapter 51, Article 1, Section 4 which
states that marriages between direct blood relatives is invalid. This provision has been put in
place to prevent incest and to prevent potential birth defects in children. The second exception to
this rule is when the marriage applicant does not meet the proper age requirements. North
Carolina General Statute Chapter 51, Article 1, Section 2 states that it is unlawful for a person
under the age of 14 to marry due to the fact that they cannot legally consent.
In our case, the plaintiffs are neither direct blood relatives nor under the legal age to
marry. If either had been true of our plaintiffs, under the North Carolina General Statute Chapter
51, Article 1, Section 2 and Section 4, the Register of Deeds would have had the authority to
deny the plaintiffs’ marriage application and would have been within the meaning of the
constitution. The only reason for denial comes under the North Carolina General Statute Chapter
51, Article 1, section 12.
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In addition, another foreseeable obstacle to our case is that not all courts believe that
samesex marriage is a civil right and violates the Due Process Clause and Equality Clause of the
Fourteenth Amendment. This inconsistency can be found in several landmark court cases, most
notably in Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006). In this case, 44 samesex couples
filed a lawsuit claiming that the restriction of marriage to oppositesex couples was invalid under
the New York state constitution. The court held that “the New York Constitution does not
compel recognition of marriages between members of the same sex. Whether such marriages
should be recognized is a question to be addressed by the Legislature.”
In our case, just as in Hernandez, the plaintiffs claim that the restriction of marriage to
oppositesex couples is invalid under the North Carolina state constitution. There is evidence that
our case can play out in either the direction of Hernandez or Goodridge. Both cases dealt with
nearly identical situations and complaints but resulted in drastically different outcomes.
There is no case or statutory law in North Carolina that contradicts or limits the North
Carolina General Statute Chapter 51, Article 1, section 12. The only counterargument possible
is that under the ruling in Goodridge v. Mass. Department of Public Health, North Carolina
General Statute Chapter 51, Article 1, section 12 violates the individual liberty and equality
provisions in the North Carolina state Constitution. There is no evidence in the case file that
indicates a problem in this regard. See the Recommendations section below.
Issue 2
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The rule of law governing due process and equal rights is the Fourteenth Amendment of the
United States Constitution which states that, “No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.” Neither the constitution nor any state statutes go
into depth when defining the specifics of these rights. The clause does not define what
constitutes liberty nor does it deal with the more specific topic of marriage; therefore, it is
necessary to refer to case law for better guidance.
A case in which the United States Supreme Court has defined marriage is Loving v.
Virginia. In this case, the police arrested the plaintiffs for violating a Virginia statute that banned
marriages between any white person and any nonwhite person. The defendants were
additionally charged with miscegenation, which was punishable by a prison sentence between
one and five years. Several years later the American Civil Liberties Union filed a motion on the
couple’s behalf calling for the judgment to be vacated on the grounds that the statutes violated
the Fourteenth Amendment. The case ultimately reached the United States Supreme Court which
ruled in favor of the couple. In overturning the defendant’s convictions, the court ruled that
marriage is one of the basic civil rights of man and to deny people the freedom to marry is a
direct violation of the principle of equality that the Fourteenth Amendment is centered on.
While there are no decided cases that deal with the issue of samesex marriage and the
Fourteenth Amendment there is one that is currently ongoing. Perry v. Schwarzenegger, 591 F.
3d 1147 (2010), is currently being argued in U.S. District Court and is a parallel case to ours.
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Perry is the result of the court’s holding in In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d
683, 183 P.3d 384 (2008). The court held in In re Marriage Cases that “statutes that treat persons
differently because of their sexual orientation should be subjected to strict scrutiny” and
recognized sexual orientation as a suspect class for the purposes of the California state
constitution’s Equal Protection Clause. Perry is currently arguing for the holding of the court in
In re Marriage Cases to be applied to the United States Constitution.
In our case, just as in Loving, the state bans marriages between people of the samesex.
While there is no criminal law that our clients have violated the Loving case can still be applied.
There is ample evidence supporting our plaintiff’s claim if we use similar logic to that presented
in Loving. If the rule of law presented in Loving is followed, it appears that there is sufficient
evidence to support the claim that the North Carolina General Statute Chapter 51, Article 1,
section 12 violates the Fourteenth Amendment in a manner similar to Section 2058 of the
Virginia Code, which prohibited interracial couples from marrying.
There is no case or statutory law in North Carolina that contradicts or limits the
Fourteenth Amendment of the United States Constitution. The best argument possible for this
case is that under the ruling if Loving v. Virginia, the North Carolina General Statute Chapter 51,
Article 1, section 12 violates the Fourteenth Amendment under the belief that marriage is a civil
right. There is no evidence in the case file that indicates any issue in this regard. The only
foreseeable issue is that in our case the plaintiffs were applying for a second marriage license
after already obtaining one in Connecticut. See the Recommendations section below for more
information.
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Conclusion
Article I, section 1, of the North Carolina state constitution states that “We hold it to be
selfevident that all persons are created equal; that they are endowed by their Creator with certain
inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own
labor, and the pursuit of happiness.” The case of Goodridge v. Mass. Department of Public
Health states that the denial of marriage licenses to gay couples was a direct violation of the
Massachusetts state constitution’s guarantee of liberty and equality. In our case, the defendants
were denied a marriage license under North Carolina General Statute Chapter 51, Article 1,
section 12. Therefore, under the ruling in Goodridge v. Mass. Department of Public Health it
appears that the North Carolina General Statute Chapter 51, Article 1, section 12 is
unconstitutional.
The Due Process Clause and Equal Protection Clause of the Fourteenth Amendment
of the United States hold that “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.” In Loving v. Virginia, the court held that “…The
freedom to marry, or not marry…resides with the individual and cannot be infringed by the
State.” While Loving v. Virginia deals with discrimination on the level of race, it can easily be
applied to the ongoing discrimination against couples of the same sex and gender. Therefore, it
appears that the North Carolina General Statute Chapter 51, Article 1, section 12 is indeed
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unconstitutional.
Recommendations
1. We should determine if there are any other matters that affect the legality of the
denial of the marriage license by the Register of Deeds of New Hanover County,
North Carolina. If the application for the license was in some way defective and was
denied for reasons other than the sex and gender of the applicants, the precedent
established in Goodridge v. Mass. Department of Public Health may not apply.
2. We need to conduct further investigation to determine if there are any standing laws
that prevent a person from obtaining multiple marriage licenses from different states
with the same person. Research on the subject has lead me to believe that there is no
such law preventing multiple marriages to the same person in different states – which
means that the marriage of Matthew Langley and Alexander Davila in Connecticut
and North Carolina would have been legal if not for North Carolina General Statute
Chapter 51, Article 1, section 12.
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Bibliography
Aaron X. Fellmeth, State Regulation of Sexuality in International Human Rights Law and
Theory, 50 Wm & Mary L. Rev. 797, 800936 (2008).
Bryan K. Fair, The Ultimate Association: SameSex Marriage and the Battle Against Jim Crow’s
Other Cousin, 63 U. Miami L. Rev. 269, 26999 (2008).
Cary Franklin, The AntiStereotyping Principle in Constitutional Sex Discrimination Law, 85
N.Y.U. L. Rev. 83, 84173 (2010).
Goodridge v. Mass. Department of Public Health, 798 N.E.2d 941 (Mass. 2003)
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)
In re Marriage Cases 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008)
Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008)
Lawrence v. Texas, 539 U.S. 558, 578 (2003)
Loving v. Virginia, 388 U.S. 1 (1967)
N.C. CONST. art. I, § 1.
M.A. CONST. art CVI.
Perry v. Schwarzenegger, 591 F. 3d 1147 (2010)
