In N.C., how do spouses of gay soldiers fit in? Legal brief presses the issue.

The friend-of-the-court brief, filed Friday, sets up a new battle space for gay rights activists in one of America’s most conservative, Christian corners.

Lynn Hey/News & Record/AP
Ellen 'Lennie' Gerber, left, smiles at Pearl Berlin, after speaking about the need to have their marriage recognized as the American Civil Liberties Union of North Carolina announces a lawsuit behalf of three married same-sex couples to order the State of North Carolina to recognize same-sex marriages Wednesday, in Greensboro.

North Carolina’s largest gay rights group on Friday asked a federal appeals court to consider: How can states justify barring benefits to same-sex military couples, including to widowed women who have lost wives in war?

A US Supreme Court ruling last June automatically conferred upon federal employees who are in legal same-sex marriages – including soldiers, marines, airmen, and sailors – the same benefit rights as other married federal employees. But when couples live off-base, dispersion of some of those benefits goes only to beneficiaries defined under state law. In both North Carolina and Virginia – where the appeals court is located – marriage is reserved by law to unions between a man and a woman.

Because of that discrepancy, Tracy Johnson of Raeford, N.C., is not collecting $1,200-a-month survivor benefits after her wife, National Guard Staff Sgt. Donna Johnson, died in a suicide bombing in Afghanistan last year, according to a friend-of the-court brief filed Friday by the gay rights group Equality NC.

That brief, filed with the Fourth Circuit Court of Appeals in Richmond, Va., both raises the question about surviving spouses and discusses other issues faced by military families that are headed by same-sex couples.

Equality NC filed the brief for a case that the court will hear on May 13: Virginia’s appeal of a lower court ruling from earlier this year that struck down the state’s gay marriage ban. If the Fourth Circuit upholds the lower court, the ruling could have implications for other Southern states, including North Carolina.

The filing Friday has instantly set up a new battle space for gay rights activists in one of America’s most conservative, Christian corners. North Carolina, where the GOP holds the reins of power, contains scores of military installations, including Fort Bragg, Camp Lejeune, Seymour Johnson Air Force Base, and Cherry Point, and the state has long been a prime retirement location for military veterans.

Against that backdrop, the friend-of-the-court brief was seen as a bold push to force North Carolinians to weigh two things that gay rights activists see as being at odds with each other: the state’s antipathy toward gay marriage – it became the last state to ban it with a constitutional amendment in 2012 – and its patriotic relationship with the US military.

“There’s of course a political bent to [the filing of the amicus brief], but what you want to do in politics is speak in a way that people will hear you,” says Jennifer Drobac, a law professor at Indiana University in Indianapolis. The North Carolina brief “opens the door for that message to get across – that [state laws are] disfavoring a population that has historically been favored in some of these more conservative states, like North Carolina.”

The filing is also playing on recent polling that suggests a lot of Southerners are making distinctions that allow them to set aside their moral objections to gay sex, while accepting the constitutional church-state separation – which bolsters the idea of state-sanctioned marriage being a civil, not religious, union.

According to a March poll by The Atlantic, 48 percent of Southerners now favor same-sex marriage, even as 37 percent at the same time state that homosexual sex is sinful.

Support for the gay marriage ban has decreased somewhat in North Carolina. Sixty-one percent of voters approved the constitutional ban two years ago, but now, 53 percent of residents support it, according to the Raleigh News & Observer.

So far, proponents of the gay marriage ban have struggled with how to respond to the filing. For one thing, it underscores that it’s possible for children of legally married same-sex couples to become “legal orphans” if one parent is killed while in the military, Professor Drobac says.

Supporters of traditional marriage in North Carolina have said that the Supreme Court, in its June ruling, meant for states to continue being able to define marriage.

So far, it’s unclear whether the appeal to help gay military families will move either the legal or cultural bar on gay marriage in the South.

“These are people who have served our country, sacrificed for our country when many of the rest of us do not do that. And the idea that the people who are out there fighting for freedom are then not given the freedom to marry and be seen as a married couple, that should be troubling for people who are concerned about justice,” says Brian Powell, a sociologist at Indiana University in Bloomington and author of the 2010 book “Counted Out,” which addresses same-sex couples and how American society defines family.

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