NC to stop defending marriage amendment

Posted July 28, 2014
Updated July 29, 2014

— Following a federal appeals court ruling Monday that Virginia's same-sex marriage ban is unconstitutional, North Carolina Attorney General Roy Cooper said his office would no longer oppose challenges to the state's constitutional amendment outlawing same-sex marriage.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled that Virginia's constitutional and statutory provisions barring gay marriage and denying recognition of such unions performed in other states violate the U.S. Constitution. The Virginia gay marriage case is the latest in a string of decisions overturning bans across the country and is one of several that could go to the U.S. Supreme Court.

Because North Carolina is part of the 4th Circuit, the decision likely mean's the state's 2012 constitutional amendment defining marriage as between one man and one woman will also be overturned in the courts, Cooper said.

"It's time to stop making arguments we will lose and instead move forward, knowing that the ultimate resolution will likely come from the United States Supreme Court," he said.

The Attorney General's Office has "vigorously defended" North Carolina's law, he said, adding that they have "made about every legal argument imaginable" to fend off lawsuits challenging its legality. Given Monday's ruling, however, he said North Carolina would acknowledge the court's opinion that marriage is a fundamental right.

"All federal courts have rejected these arguments each and every time, so it's time for the state of North Carolina to stop making them," he said. "There's really no argument left to be made."

Cooper has spoken out previously against North Carolina's amendment, but he said the decision Monday not to continue fighting to uphold it was based solely on the legal merits of the case and was separate from his personal opinion.

Still, Senate President Pro Tem Phil Berger wasn't pleased with Cooper's decision.

"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,” Berger, R-Rockingham, said in a statement.

Lawmakers passed legislation last year that gives Berger and House Speaker Thom Tillis the authority to intervene and hire lawyers to defend state laws whenever the Attorney General's Office declines to do so.

Virginia law can't trump 'fundamental right'

In 2006, Virginians voted 57 percent to 43 percent to approve the constitutional amendment banning gay marriage. Virginia laws also prohibit recognition of same-sex marriages performed in other states.

Virginia's same-sex marriage bans "impermissibly infringe on its citizens' fundamental right to marry," Judge Henry F. Floyd wrote in the court's opinion.

"Americans’ ability to speak with their votes is essential to our democracy. But the people’s will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry," Floyd wrote.

In February, U.S. District Judge Arenda Wright Allen ruled that Virginia's same-sex marriage ban violates the U.S. Constitution's equal protection and due process guarantees. Lawyers for two circuit court clerks whose duties include issuing marriage licenses appealed. Attorney General Mark Herring, representing a state official also named as a defendant, sided with the plaintiffs.

"Marriage is one of the most fundamental rights — if not the most fundamental right — of all Americans," David Boies, an attorney for the plaintiffs, said in a statement. "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."

The Virginia lawsuit was filed by Timothy Bostic and Tony London of Norfolk, who were denied a marriage license, and Carol Schall and Mary Townley of Chesterfield County. The women were married in California and wanted their marriage recognized in Virginia, where they are raising a 16-year-old daughter.

Two other same-sex couples, Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, filed a similar lawsuit in Harrisonburg and were allowed to intervene in the case before the appeals court.

It was not immediately clear if or when Virginia would need to begin issuing marriage licenses to same-sex couples.

Ruling latest in string of decisions favoring gay marriage

Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court last year struck down a key part of the federal Defense of Marriage Act. Those rulings remain in various stages of appeal.

More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.

Gay rights advocates in North Carolina hailed the ruling.

"Today’s ruling is further proof that there is not a single valid legal argument to uphold Amendment One. It's not a question of if Amendment One will be struck down, but when," Rev. Jasmine Beach-Ferrara, executive director of Campaign for Southern Equality, said in a statement. "Each day that North Carolina’s ban on same-sex marriage remains on the books, families are harmed."

Six North Carolina families and several clergy across the state have filed lawsuits to overturn North Carolina's gay marriage ban.

"Today’s ruling sets a clear precedent for courts in North Carolina and is the most significant step to date toward securing the freedom to marry for all loving and committed couples in our state,” Chris Brook, legal director for the ACLU of North Carolina Legal Foundation, which also has challenged the North Carolina amendment, said in a statement.

One of those families, Marcie and Chantelle Fisher-Borne, believes things are headed in the right direction for North Carolina.

The couple, who were wed in Washington, D.C. where same sex marriages are legal, have been together for 17 years and have two children together. They're also seeking second parent adoption rights.

"We're are excited about where things are moving," Marcie Fisher-Borne said. "I think it's the right decision and we're excited for North Carolina."

Attorneys and plaintiffs in two of the lawsuits filed to challenge the state's law will speak at a news conference in downtown Raleigh at noon Tuesday.

Tami Fitzgerald, executive director of the North Carolina Values Coalition, called the ruling "outrageous" and warned registers of deeds across the state that they could face criminal prosecution if they try to issue marriage licenses to same-sex couples.

"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," Fitzgerald said in a statement.


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  • Cathy Lane Jul 31, 2014
    user avatar

    His opinion does not count. Mr. Copper was elected to uphold the laws of this state. Until that law is declared unconstitutional, it is his JOB to uphold that law, regardless of his opinion. If he continues this madness, who knows which law he will trash next. It is not about gay marriage, it is about his JOB!

  • Pensive01 Jul 30, 2014

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    It takes a whole lot of chutzpah to finally admit that the laws you support are clearly unconstitutional, and in virtually the same breath condemn those who don't support those laws as you do, because they clearly saw those laws as being unconstitutional long before you finally owned up to that fact. However it is clear that you still seem to think that people can only have good moral values, as long as they share the same beliefs as you. Not everyone shares the same values as you, or even share the same religious beliefs as you do, but that does not mean that they don't have good moral values simply because they don't share your beliefs. Remember that the First Amendment of the US Constitution gives people the right to freely follow the beliefs that they freely choose, not the beliefs you would choose them to have.

  • Joseph Shepard Jul 29, 2014
    user avatar

    Some of the folks posting here, and gloating that the Virginia law against gay marriage was overturned. Indeed, not one state has had it anti-gay marriage law upheld. And, indeed some posting here celebrating their victories like they individually had something to do with it. Rubbish. The 14th Amendment to the Constiution, and the "equal protection clause" long ago determined that anti-gay marriage laws would fail. The Supremacy Clause states that any law, or constitutional amendment of the states, if it conflicts with the federal constitution, automatically loses. They can have their "marriage"--but in so doing, they violate the Law of God--and while they may enjoy their temporary twisted pleasure in this life, its for sure they will be held accountable before the Throne of God..

  • Freda Kerr Jul 29, 2014
    user avatar

    The bible is an article of faith, not fact, no matter how fervently one believes.

    Laws that are enacted to ensure the smooth and fair and just running of a society do not require the belief in a deity.

    My daughter was born and raised by two heterosexual parents. My late hubby and I (a straight woman) taught her NOTHING about homosexuality. She did not choose to be gay she was just always attracted to girls. Being gay is not a choice, it is a state of being.

  • SM Jul 29, 2014

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    You DO realize Canada is rife with things you might not like, right? Like nationalized medicine, and legal gay marriage.

  • Tony Snark Jul 29, 2014

    "Virginia's same-sex marriage bans "impermissibly infringe on its citizens' fundamental right to marry," Judge Henry F. Floyd wrote in the court's opinion.
    "Americans’ ability to speak with their votes is essential to our democracy. But the people’s will is not an independent compelling interest that warrants depriving same-sex couples of their fundamental right to marry," Floyd wrote.

    "Tami Fitzgerald, executive director of the North Carolina Values Coalition, called the ruling "outrageous"

    I wish I knew what part of the decision she considers "outrageous" and why.

  • Karen Orndorff Jul 29, 2014
    user avatar

    It was just a matter of time anyway.

  • Bill Brasky Jul 29, 2014

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    Very well put

  • jurydoc Jul 29, 2014

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    The list is long ranging from the simple ability to visit one's "spouse" in the hospital to the ability to claim tax credits from being married and on to the inheritance laws that have certain provisions (regarding taxing) that apply to non-spouses that differ from spouses. This is the issue that brought down DOMA at the federal level. A woman whose long-term partner died faced a huge inheritance tax that a spouse would not have faced. If laws had not been passed that incorporated the state of being married or being spouses, this would be a non-issue. But laws (and policies) have, so there is the rub!

  • Pepe Silvia Jul 29, 2014

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    Yes there will. There are many churches and religious leaders who openly welcome equality and same sex couples. No church will be forced to marry anyone they don't wish to, of course, just like they are not forced to now.