NC attorney general won't defend gay marriage ban
North Carolina's attorney general said Monday his office will no longer defend the state's voter-approved ban on same sex marriage in court after a federal appeals court ruled a similar prohibition in neighboring Virginia unconstitutional.
At a news conference little more than two hours after the 4th U.S. Circuit Court of Appeals ruling was announced in Richmond, Virginia, Attorney General Roy Cooper said the ruling made it highly likely North Carolina's ban will be overturned. North Carolina is part of the 4th Circuit.
Cooper, a Democrat, said further opposition to the four federal lawsuits challenging his state's constitutional ban on same-sex marriage would be "futile."
"Our attorneys have vigorously defended North Carolina marriage law, which is their job," Cooper said. "But today we know our law almost surely will be overturned as well. Simply put, it is time to stop making arguments we will lose and instead move forward, knowing that the ultimate resolution will likely come from the U.S. Supreme Court."
Cooper had previously stated his personal opposition to the marriage ban, but said it was his duty as an elected official to defend the state constitutional amendment approved by voters in 2012. He said his decision Monday doesn't mean same-sex marriages in North Carolina can begin immediately. That would take a judge's ruling. But since the 4th Circuit includes North Carolina, he said any federal judge in the state would be bound by the ruling out of Virginia
The 4th U.S. Circuit Court of Appeals in Richmond is the second federal appellate court to overturn gay marriage bans, and the first to affect the South, a region where the rising tide of rulings favoring marriage equality is testing concepts of states' rights that have long held sway.
"We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws," Judge Henry F. Floyd wrote.
The 2-1 ruling applies throughout the circuit that includes West Virginia and Maryland as well as Virginia and the Carolinas.
Virginians voted 57 percent to 43 percent in 2006 to amend their constitution to ban gay marriage. Virginia laws prohibit recognizing same-sex marriages performed in other states. Floyd said such measures "impermissibly infringe on its citizens' fundamental right to marry."
Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. Nineteen states and the District of Columbia allow same-sex marriages.
"Our office, along with other attorneys general and state attorneys across the country, have made about every legal argument imaginable," Cooper said. "Since the U.S. Supreme Court ruled in the Windsor case, all the federal courts have rejected these arguments each and every time. So it's time for the State of North Carolina to stop making them."
The U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.
The 6th Circuit in Cincinnati will hear arguments on Aug. 6 for Ohio, Michigan, Kentucky and Tennessee. The 7th Circuit in Chicago is set for arguments on Aug. 26, and the 9th Circuit in San Francisco for Sept. 8. The 10th Circuit in Denver overturned Utah's ban in June.
"Marriage is one of the most fundamental rights — if not the most fundamental right — of all Americans," said plaintiffs' attorney David Boies. "This court has affirmed that our plaintiffs — and all gay and lesbian Virginians — no longer have to live as second-class citizens who are harmed and demeaned every day."
Defenders of gay marriage bans are likely to ask for a stay pending their next appeal; otherwise, licenses could be issued to Virginia's same-sex couples in 21 days
Cooper's decision was quickly condemned by Republican officials and groups that campaigned for the amendment approved two years ago. Cooper is widely expected to seek the Democratic nomination to challenge GOP Gov. Pat McCrory in 2016.
"North Carolinians overwhelmingly voted to put the marriage amendment into our state constitution and expect their attorney general to uphold his oath of office by defending that constitution," said Senate leader Phil Berger Sr., R-Rockingham.
Tami Fitzgerald, executive director of the pro-ban North Carolina Values Coalition, strongly disagreed that it is a forgone conclusion that the law would be overturned.
"It is outrageous that federal judges put themselves in the place of God by seeking to redefine the very institution that He created," Fitzgerald said. "Anyone who believes that this decision in Virginia somehow strikes down North Carolina's Marriage Amendment is wrong. North Carolina's Marriage Amendment still stands, and no judge has found it unconstitutional."
The American Civil Liberties Union of North Carolina represents same-sex plaintiffs in two lawsuits challenging the North Carolina law now pending before a federal judge in Greensboro. Chris Brook, the group's legal director, agreed with Cooper that the new ruling means the state's ban is likely to be overturned.
"This is the 4th Circuit very clearly indicating that marriage bans such as North Carolina's do not comport with our Constitution's promise of equality," Brook said. "We're reviewing our options right now in light of the 4th Circuit's very encouraging opinion."