Together 48 years, couple fights NC marriage ban
Posted August 14, 2014 5:15 a.m. EDT
Updated August 14, 2014 6:44 p.m. EDT
HIGH POINT, N.C. — On the summer night Ellen Gerber and Pearl Berlin committed to spending their lives together, the No. 1 song was "When A Man Loves A Woman."
Lyndon B. Johnson was president. NASA had just landed the first unmanned probe on the moon.
"We're still in love, after 48 years," Gerber, better known as Lennie, said recently. "We still can't begin the day without a good cuddle."
June 2, 1966, is engraved in Roman numerals on the identical gold bands the women exchanged during a religious wedding at their Greensboro synagogue last year on the anniversary of that long-ago night. They followed three months later with a civil ceremony in Maine.
But under North Carolina law, they might as well be strangers.
That's why Gerber and Berlin are the lead plaintiffs in a lawsuit challenging the state's voter-approved constitutional amendment banning legal recognition of same-sex relationships.
"They can see that in us, that being gay or lesbian is just the same as being straight," Gerber said. "You just love somebody of your own sex. Otherwise, there's no difference. ... We want to be recognized for what we are – a married couple."
Last month, the U.S. 4th Circuit Court of Appeals – with jurisdiction over five states, including North Carolina – struck down Virginia's same-sex marriage ban. On Wednesday, the appellate panel refused to delay its ruling, possibly clearing the way for gay marriages to begin next week in the Old Dominion.
North Carolina Attorney General Roy Cooper has said it would be "futile" to continue defending his state's similar law. Republican Gov. Pat McCrory and GOP legislative leaders urged Cooper, a Democrat, to continue the fight, but gave no indication they will defend the ban themselves.
The American Civil Liberties Union, which is representing Gerber and Berlin, on Wednesday asked a federal judge to find that the 4th Circuit's ruling set a legal precedent that North Carolina must follow, essentially invalidating the state's constitutional and statutory bans on same-sex marriage.
"Virginia had a marriage ban. The 4th Circuit struck that marriage ban down. North Carolina's marriage ban is legally indistinguishable. Therefore, it should be struck down, and it should be struck down now, said Chris Brook, legal director for the ACLU's North Carolina chapter.
Many North Carolinians in same-sex relationships are waiting until marriage is legal in the state before they make their unions legal, even though same-sex marriage is legal in other states.
"We didn't want to have to actually leave the state to get married and then drive back into the state and have it completely unrecognized. What's the point of getting married?" Brian Johnson said.
There are real-world worries that come with being gay and growing older, and time is not on the side of Gerber and Berlin, who live in High Point.
Berlin, 89, fell down some stairs before Christmas, hitting her head, breaking three ribs and enduring her third hospital stay in two years.
Gerber, a 78-year-old retired lawyer, long ago drafted Berlin's health-care power of attorney. But a piece of paper is no guarantee hospital staff would immediately afford her the same spousal rights that would be automatic if she were married to a man.
"It's very scary, that something could happen to Pearl and I could be kept from her," Gerber said. "They might not let me in the emergency room with her. They might not let me help make decisions. ... It would be just horrendous if I wasn't able to be there with her, holding her hand. I would die if I couldn't do that."
Since the U.S. Supreme Court struck down a key section of the federal Defense of Marriage Act last year, same-sex marriage proponents around the country won nearly two dozen legal victories. Such marriages are now allowed in 19 states and the District of Columbia.
Legal experts predict North Carolina's first same-sex marriage licenses could be issued within months, depending on the legal process.
But Gerber and Berlin worry they might not have much time. Their lawyers plan to file a brief asking a federal judge in Greensboro to grant immediate recognition to same-sex marriages.
"Marriage is a statement that you make in front of your family, your friends, your community. It has a meaning that tells the world who you are. It's a very fundamental part of someone's identity," Gerber said.
The walls of the home they built in High Point are covered with art and photos from their adventures. They visited all seven continents, even mingling with penguins on an Antarctic ice shelf.
Berlin is a perfectionist. Gerber admits she's something of a slob.
They met in 1964, when Gerber visited a friend in Detroit who invited Berlin for brunch. Berlin taught at Wayne State University. Gerber was headed to graduate school at the University of Southern California.
It wasn't love at first sight, but they had a lot in common. They both taught physical education. They were both "nice Jewish girls from Brooklyn." They'd never had much interest in boys.
"I had a crush on every female camp counselor I ever had. On every Girl Scout leader. On a couple of my teachers," Gerber said. "I came home from my first summer where I was at camp for a month, and I wrote, 'I love Sandy,' on every page of my diary."
Over the next two years, with frequent calls and visits, their friendship evolved into love. Gerber landed a job at Berlin's college.
On the long drive moving Gerber to Michigan, they stopped at a motel. Conversation turned to where Gerber would live. That night, they decided to move in together.
They didn't tell their families they were a couple, but didn't hide it. They lived in a one-bedroom apartment. Gerber's mother offered to buy a second bed. They declined. She started buying Berlin pajamas.
"She said, 'We will never condone this,'" Gerber recounted. "But she got to the point where she could laugh when I said, 'But Mother. You always said all you cared about was that I marry a Jew, and I did.'"
Berlin had inadvertently outed herself years earlier, mistakenly sending her mother a love letter she had written to a woman. Her mother called.
"And she says, 'Pearl, I just want to tell you something. I just finished reading today's mail, and I just read your letter to Marian. It was very well written. I know you did not intend it for me. I want you to know your father will never see it and never hear a word about it.'"
Eventually, even Berlin's father accepted their relationship, telling Gerber: "Lennie. If you were a man, this would all be perfect," Gerber recounted.
Berlin moved to a college in Massachusetts, and Gerber got work there too. Then, in 1971, the University of North Carolina at Greensboro asked Berlin to run a new doctoral program.
Gerber said school administrators made it clear they would never hire her.
"They said we were 'too open,'" Gerber said. "You were supposed to pretend."
So Gerber went to law school and became a legal aid lawyer. Later, she helped gay and lesbian couples draft wills, powers of attorney and fill out tax returns.
Still, no legal document can provide the same protections as a marriage certificate. Gerber recounts cases where relatives fought deceased people's gay partners over their estates, or excluded them from funerals.
While that isn't a concern for Gerber, she worries Berlin's death certificate will list her marital status as single.
"I think anybody who had lost a spouse would be devastated if somebody said, 'Eh, this isn't your spouse.'"
Berlin chuckles at talk of her demise. She already has picked the font for invitations to their golden anniversary party — on June 2, 2016.
Follow Associated Press writer Michael Biesecker at https://twitter.com/mbieseck .