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Case Name Gerber v. Cooper PB-NC-0007
Docket / Court 1:14-cv-00299 ( M.D. N.C. )
State/Territory North Carolina
Case Type(s) Public Benefits / Government Services
Special Collection Same-Sex Marriage
Attorney Organization ACLU Chapters (any)
Case Summary
On April 9, 2014, several same-sex couples residing in North Carolina filed a lawsuit in the U.S. District Court for the Middle District of North Carolina under 42 U.S.C. § 1983 against the state of North Carolina. The plaintiffs, represented by the American Civil Liberties Union (ACLU) and ... read more >
On April 9, 2014, several same-sex couples residing in North Carolina filed a lawsuit in the U.S. District Court for the Middle District of North Carolina under 42 U.S.C. § 1983 against the state of North Carolina. The plaintiffs, represented by the American Civil Liberties Union (ACLU) and private counsel, asked the court to declare that North Carolina's ban on same-sex is unconstitutional, declare North Carolina laws prohibiting joint adoption by same-sex couples are also unconstitutional, enjoin the state from enforcing any of its laws banning same-sex marriage, direct the state to recognize same-sex marriages entered into in other states, and award the plaintiffs costs of suit and reasonable attorney's fees.

The plaintiffs alleged that their rights under the Due Process Clause and Equal Protection Clause were violated by North Carolina's laws banning same-sex marriage. They also claimed that the laws interfered with the structure of their families because same-sex couples could not participate in second parent adoption.

On June 2, 2014, the Court (Magistrate Judge Joi Elizabeth Peake) granted a petition that allowed one of the plaintiffs to prosecute this civil action on behalf of her minor child. That same day, the Court stayed further proceedings in this case pending a ruling by the Court of Appeals for the Fourth Circuit in Bostic v. Schaefer, which also challenged a state's ban on same-sex marriage. On June 24, 2014, this case was reassigned to Chief Judge William L. Osteen.

The Fourth Circuit's July 28, 2014 ruling in Bostic held that the Virginia Marriage Laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples' lawful out-of-state marriages. 760 F.3d 352 (4th Cir. 2014). On August 27, 2014, the proceedings in this case were further stayed pending the determination of the Supreme Court whether to grant a petition for writ of certiorari in Bostic.

After the Supreme Court denied certiorari review in Bostic, Judge Osteen issued an order on October 6, 2014, finding that it appeared the plaintiffs were entitled to an order granting the pending motions for preliminary injunction in light of the Fourth Circuit's mandate, but that at least two issues remained for the court's resolution: (i) what further action by the court was necessary with respect to those issues arguably
resolved by Bostic, and (ii) resolution of the adoption laws at issue in the case. On October 8, 2014, Judge Osteen lifted the stay in the case and denied all prior pending motions, except the motion for preliminary injunction, as moot. The order also dismissed the North Carolina Attorney General as a defendant and allowed the State of North Carolina to intervene. The plaintiffs filed a motion for judgment on the pleadings that same day.

The Speaker of the North Carolina House of Representatives and the President Pro Tempore of the North Carolina Senate filed motions to intervene. On October 14, 2014, Judge Osteen permitted their intervention, noting that it would preserve their right to appeal, but overruled their objections to the court's jurisdiction and to the application of Bostic.

In an October 14, 2014 order, the court declared North Carolina Const. art. XIV,
§ 6, N.C. Gen. Stat. § 51-1, and N.C. Gen. Stat. § 51-1.2 unconstitutional to the extent that those laws prevent same-sex couples from marrying and prohibit the State of North Carolina from recognizing same-sex couples’ lawful out-of-state marriages. 14 F. Supp. 3d 695 (M.D. NC 2014). The order enjoined the State of North Carolina and its officers, agents, and employees from implementing or enforcing any of the above-mentioned provisions. The plaintiffs' claims concerning North Carolina's adoption laws, as well as the pending motion for preliminary injunction, were dismissed without prejudice as moot.

Speaker of the NC House of Representatives and President Tempore of the NC Senate, intervenors in this action, appealed the order on November 6, 2014. The plaintiffs filed a notice of cross-appeal on November 14, 2014, seeking dismissal of the legislative intervenors' appeal by appealing the order granting the motion for intervention.

On December 4, 2015, the cross appeals were consolidated before the Fourth Circuit. On February 10, 2015, the Fourth Circuit placed the case in abeyance pending the US Supreme Court's decision in Obergefell v. Hodges. On June 26, 2015, the Supreme Court's Obergefell decision held that state bans on same-sex marriage violate the 14th Amendment. The Supreme Court denied the intervenors' petition for a writ of certiorari, resulting in a mandate from the Fourth Circuit on August 12, 2015. This denial left intact the judgment in the plaintiffs' favor of October 8, 2014, rendering the plaintiffs the prevailing party for purposes of recovering attorney's fees under 42 U.S.C. § 1988.

The plaintiffs filed a motion for attorney's fees on October 13, 2015. The plaintiffs reached a settlement agreement with the legislative intervenors for $44,501.36 on October 21, 2015. Though certain administrative errors prolonged the resolution of the remaining fees, the court granted the plaintiffs' motions for attorney's fees and costs against the defendants on July 25, 2018 in the amount of $169,656.25. As of August 9, 2018, it does not appear that either party filed an objection to this order during the 10-day stay on the attorney's fees for the filing of objections, and it does not seem that there are any further matters to be resolved in this case.

Megan Dolan - 07/02/2014
Sarah McDonald - 08/08/2018


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Issues and Causes of Action
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Issues
Affected Gender
Female
Male
Constitutional Clause
Due Process
Equal Protection
Defendant-type
Jurisdiction-wide
Discrimination-basis
Sex discrimination
Sexual orientatation
General
Adoption
Marriage
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) State of North Carolina
Plaintiff Description Three same-sex families who are residents of North Carolina.
Indexed Lawyer Organizations ACLU Chapters (any)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief Declaratory Judgment
Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Filing Year 2014
Case Closing Year 2018
Case Ongoing Yes
Additional Resources
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  Gerber and Berlin v. Cooper - Freedom to Marry in North Carolina
ACLU Cases
Date: Jun. 2, 2014
(ACLU)
[ Detail ] [ External Link ]

Docket(s)
1:14-cv-299 (M.D. N.C.)
PB-NC-0007-9000.pdf | Detail
Date: 07/25/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
PB-NC-0007-0001.pdf | Detail
Date: 04/09/2014
Source: PACER [Public Access to Court Electronic Records]
Recommendation of United States Magistrate Judge [ECF# 49] (M.D. N.C.)
PB-NC-0007-0002.pdf | Detail
Date: 06/02/2014
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 63] (M.D. N.C.)
PB-NC-0007-0003.pdf | Detail
Date: 08/27/2014
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 66] (M.D. N.C.)
PB-NC-0007-0004.pdf | Detail
Date: 10/06/2014
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 71] (M.D. N.C.)
PB-NC-0007-0005.pdf | Detail
Date: 10/06/2014
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 90] (M.D. N.C.)
PB-NC-0007-0006.pdf | Detail
Date: 10/14/2014
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 91] (M.D. N.C.)
PB-NC-0007-0007.pdf | Detail
Date: 10/14/2014
Source: PACER [Public Access to Court Electronic Records]
Notice of Stipulation and Settlement Agreement as to Costs, Attorney's Fees and Costs [ECF# 110]
PB-NC-0007-0008.pdf | Detail
Date: 10/21/2015
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion and Order [ECF# 125] (M.D. N.C.)
PB-NC-0007-0009.pdf | Detail
Date: 07/25/2018
Source: PACER [Public Access to Court Electronic Records]
Judges Osteen, William Lindsay Jr. (M.D. N.C.)
PB-NC-0007-0003 | PB-NC-0007-0004 | PB-NC-0007-0005 | PB-NC-0007-0006 | PB-NC-0007-0007 | PB-NC-0007-0009 | PB-NC-0007-9000
Peake, Joi Elizabeth (State Trial Court, M.D. N.C.) [Magistrate]
PB-NC-0007-0002 | PB-NC-0007-9000
Plaintiff's Lawyers Beeney , Garrard R (New York)
PB-NC-0007-9000
Brook, Christopher (North Carolina)
PB-NC-0007-0008 | PB-NC-0007-9000
Castleman, David A (New York)
PB-NC-0007-9000
Falcone, Jeremy M (North Carolina)
PB-NC-0007-9000
Gill, Elizabeth O. (California)
PB-NC-0007-9000
Kleysteuber, William R. A. (New York)
PB-NC-0007-9000
O'Donnell, Patrick P. (District of Columbia)
PB-NC-0007-9000
Richardson, Amy E. (North Carolina)
PB-NC-0007-0008 | PB-NC-0007-9000
Sasser, Jonathan D (North Carolina)
PB-NC-0007-0001 | PB-NC-0007-9000
Saxe, Rose A. (New York)
PB-NC-0007-9000
Defendant's Lawyers Barnett, Michael J. (North Carolina)
PB-NC-0007-9000
Eastman, John C. (California)
PB-NC-0007-0008 | PB-NC-0007-9000
Hood, David Wallace (North Carolina)
PB-NC-0007-9000
Johnson, Noel H. (Indiana)
PB-NC-0007-9000
Payne, John Mark (North Carolina)
PB-NC-0007-9000
Potter, Robert Daniel (North Carolina)
PB-NC-0007-0008 | PB-NC-0007-9000
Vanderhulst, Joseph A. (Indiana)
PB-NC-0007-9000
Vysotskaya de Brito, Olga Eugenia (North Carolina)
PB-NC-0007-9000
Whitehead, Charles Gibson (North Carolina)
PB-NC-0007-9000

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