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Legal experts: Same-sex marriage likely here to stay

Posted October 15, 2014 6:06 p.m. EDT
Updated October 16, 2014 6:55 p.m. EDT

— Legislative leaders said late Wednesday they’re evaluating their legal options to appeal the overturning of North Carolina’s constitutional ban on same-sex marriage. But legal experts say such an appeal is unlikely to succeed.

Over the past week, two federal judges – one in Asheville, one in Greensboro – have ruled that the amendment violates the U.S. Constitution and have ordered state officials to stop enforcing it.

U.S. District Judge Max Cogburn denied legislative leaders’ request to be allowed to intervene in the case. However, U.S. District Judge William Osteen granted them standing in the case.

That leaves the door open for a potential appeal of the ruling. However, constitutional and family law experts agree an appeal is unlikely to succeed. The court to which any North Carolina appeal would go would be the 4th U.S. Circuit Court of Appeals, the same court that ruled Virginia’s same-sex marriage ban unconstitutional.

That was the ruling that led to North Carolina’s ban being overturned as well.

University of North Carolina School of Law professor Maxine Eichner, who specializes in family law, predicts the 4th Circuit will refuse to hear the appeal, instead issuing a summary order upholding Osteen’s ruling. Legislators could also petition the court for an emergency stay that would put same-sex marriage on hold temporarily in North Carolina, but Eichner doubts that’s likely, either.

In order for lawmakers to win on appeal, she said, “The 4th Circuit would have to reverse its previous decision. There is nothing to suggest that it would plan to do that.”

Raleigh family law attorney Angela Haas, who represents gay and lesbian clients, agrees with Eichner that an appeal likely wouldn’t get a hearing.

“The 4th Circuit has already ruled on the Virginia ban, which is very similar to the North Carolina ban. I don’t think they’re going get anywhere with it,” Haas said. “I think it’s a very futile attempt, but they’re going to fight to the death. They’re going to fight, fight, fight until there’s no other place that they can fight.”

That final place would be the U.S. Supreme Court. Lawmakers could ask the justices for a discretionary review of the case and an emergency stay.

Eichner predicts the Supreme Court will deny both the stay and the review, based on its actions in other recent marriage cases.

“With the denial of certiorari in the seven other cases, it seems very difficult to imagine that they would accept review after they rejected review of the 4th Circuit decision before,” she said.

“Because none of the circuit courts have found that the bans are constitutional, the Supreme Court is not getting involved yet,” Haas said. “There’s no dispute. All the circuits have been saying these bans are unconstitutional.”

Some same-sex couples are worried their marriages could be invalidated if legislators should succeed in their attempt to get the ban reinstated, but Greg Wallace, a constitutional law professor at Campbell University said "the train has left the station" on that one.

"I don’t think, all of the sudden, they would become unmarried because, at the time of the marriage, that was the law," said Wallace, who opposes gay marriage. "I don’t see any court saying, 'You’re no longer married.'"

Haas said that could hypothetically happen if the ban were found to be constitutional.

“I just think it’s so far-fetched that that’s going to occur. I don’t think people need to be worried about it. I think the 4th Circuit has ruled, which covers North Carolina, and I don’t think they’re going to overrule their decision,” she said. “We’re allowed to marry, and we’re going to continue to be allowed to marry. That’s my prediction.

“I would say, if you want to get married and you can get married, get married,” she added. “Why not?”

Eichner agreed.

“It is very difficult to imagine that this is not over right now. How long it takes to sign the papers, I don’t know , but this is over,” she said.

House Speaker Thom Tillis and Senate President Pro Tem Phil Berger have previously said they plan to appeal. They have 30 days in which to file an appeal.

Tillis' office did not respond to a request for an interview, and Berger's office said no one was available Wednesday. 

In a statement Tuesday evening, Berger said Osteen’s decision to allow legislative intervention “recognizes that the more than 60 percent of North Carolina voters who define marriage as between one man and one woman deserve their day in court, and this decision is an important step to ensure their voice is heard.”

But Eichner says that argument holds no legal weight.

“That’s why we have a constitution. We say that the public can vote on a number of issues, but they can’t vote on fundamental issues of constitutional rights that we have reserved,” she said.

“The constitution trumps a vote of the people, and when there’s a violation of the constitution, the people don’t get to overrule that,” she added. “The majority doesn’t get to take away the fundamental rights of the minority, no matter how much they would wish to do it and how many of them voted to do it.”

Wallace said state lawmakers would be better served by turning their attention to dealing with the fallout of the gay marriage ruling rather than continuing to fight it.

"I think it would be better for the legislators to be looking at some statutory religious freedom protections for those who are going to be in the unusual position of being forced against their religious convictions to facilitate gay marriage," he said.

Some North Carolina magistrates have already been called to task for refusing to marry same-sex couples.