Forgoing futile resistance

Jul. 29, 2014 @ 04:48 PM

North Carolina Attorney General Roy Cooper wasted no time drawing the logical conclusion from Monday’s decision by the 4th U. S. Circuit Court of Appeals rejecting Virginia’s ban on same-sex marriages.

North Carolina is in the 4th Circuit and Cooper rightly expects the judges’ reasoning would also void North Carolina’s constitutional ban passed in 2012. To continue to defend our law in court would, the attorney general said, be futile.

He is right.

While Cooper opposes the ban, he has said he would be duty-bound to defend it in court. But it is increasingly clear such a defense would waste taxpayer money – the judicial tide is rolling against same-sex-marriage bans.  More than 20 court decisions at the trial and appellate levels have struck down such bans since the U. S. Supreme Court rejected part of the federal Defense of Marriage Act last year.

It is widely expected the Supreme Court will take up gay marriage in its next term, as the appeals-court rulings pile up. Predicting a high-court stance is notoriously risky, but given the DOMA ruling, it’s reasonable to think chances are the court will find much as the 4th Circuit did Monday.

“We recognize that same-sex marriage makes some people deeply uncomfortable.” Judge Henry F. Floyd wrote for the court. “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.”

Defenders of North Carolina’s ban immediately criticized the court -- as they have every right to do. North Carolinians, state Senate leader Phil Berger, R-Rockingham, said Monday, voted overwhelmingly (61 percent to 39 percent) for the ban.

But let’s note that North Carolina’s constitutions have an unhappy history on discrimination. Our 1875 Constitution, forged in the backlash to Civil War defeat and Reconstruction, declared “All marriages between a white person and a negro, or between a white person and a person of negro descent to the third generation inclusive, are hereby forever prohibited.” That prohibition stood until 1971, and not until 1977 did the legislature validate interracial marriages.

That same constitution mandated separate public schools for black children.

Arguments for the ban have an eerie echo of segregation’s defense that persisted until – in the minds many, until well after – repeated court decisions and finally landmark federal legislation outlawed it in the mid-1960s.

“It is outrageous that federal judges put themselves in the place of God by seeking to redefine the very institution that He created,” Tami Fitzgerald, executive director of the North Carolina Values Coalition, declared on Monday. 

Leaving aside that many devout Christians do not believe that is God’s message, let us remember that Fitzgerald’s God is not the god of everyone on this planet, or in this state.  Respecting those differing views of the deity is a bedrock American value.

Southerners have taken last-ditch stands for lost causes before. Many may want us to do it again. Roy Cooper is right to say, not here, not this time.