by Bob Geary
Breaking news 2: Attorney General Roy Cooper just finished a press conference. He said he's dropping his defense of Amendment One in the four N.C. cases brought by LGBT advocates. The 4th Circuit ruling is binding on N.C. judges, he says. So it's his obligation, if and when any of these cases moves forward — three are stayed currently, and the fourth has yet to be heard — to inform the judge as to what the law is now. And the law now, Cooper said, is that Amendment One is unconstitutional according to the binding Circuit Court decision.
"Our lawyers have vigorously defended North Carolina's marriage law, which is their job," Cooper said. Now, he added, "It's time to stop making arguments we will lose."
(I've copied his full statement below.)
The ultimately resolution on same-sex marriage rights will likely come from the United States Supreme Court, Cooper added, either by deciding the issue itself or by refusing to review the 4th Circuit and other federal court rulings that support a 14th Amendment right to equal marriage rights for LGBT persons.
It's likely that no same-sex marriages will be allowed in North Carolina, however, before the Supreme Court acts … or declines to act, Cooper added.
Breaking news: The three-judge panel of the 4th Circuit Court of Appeals split 2-1. The decision to strike down Virginia's ban on same-sex unions isn't effective immediately. When it does take effect — in a matter of days — it would seem to apply as well to North Carolina, which is within the 4th Circuit's appeals jurisdiction. The Virginia attorney general has already said he will not defend the state's ban and will instead side, in any further appeals by other parties, with the plaintiffs who challenged the ban.
Here's a link to the ruling: http://www.ca4.uscourts.gov/Opinions/Published/141167.P.pdf
And there's an excellent summary here, from Equality NC: http://equalitync.org/marriage/
Plus: Lyle Denniston, Another circuit rules for same-sex marriage, SCOTUSblog (Jul. 28, 2014, 3:03 PM), http://www.scotusblog.com/2014/07/another-circuit-court-rules-for-same-sex-marriage/
Equality North Carolina will be holding #DecisionDay at their #DecisionDay Hub at Motorco in Durham, NC, to get engaged with the important work of learning and sharing the Bostic results and impact, next steps, and how you can help build the movement for marriage here at home. 6:30pm, y'all!
North Carolina Attorney General Roy Cooper has thus far defended Amendment One, our state's ban, though he has said he personally opposes it. He has a decision to make whether to appeal the 4th Circuit's ruling on behalf of the state. Whether he does or he doesn't, Amendment One's Republican sponsors almost certainly will appeal and seek to have the ruling stayed, at least as far as its effect on North Carolina.
That's my quick take.
(Updating this: Someone wrote to question whether Cooper could appeal a case involving a Virginia law. I should've said that he has a decision to make whether to join an appeal if there is one coming from Virginia, as there almost certainly will be. Even if there isn't any appeal, Cooper is defending the North Carolina law (Amendment One and an anti-LGBT marriage statute) in separate cases to which this Circuit Court ruling would apply. A question is whether Cooper will now say that Amendment one is indefensible in light of the 4th Circuit's ruling or, alternatively, continue to defend it if the ruling is appealed and/or stayed. I've sent an email to Cooper's office asking for his reaction to the decision. I'll share any response that comes.)
This is a statement from Freedom to Marry, a pro-LGBT rights group:
4th Circuit Court of Appeals Strikes Down Virginia Marriage Ban
New York — Today the 4th Circuit Court of Appeals in Richmond ruled in favor of same-sex couples’ freedom to marry, upholding a lower court’s February decision that found Virginia’s marriage ban unconstitutional.
Evan Wolfson, president of Freedom to Marry, released the following statement:
"It was in a case out of Virginia that the Supreme Court ended race discrimination in marriage. And today, in another Virginia marriage case, a federal circuit court ruled against discrimination in marriage, affirming the freedom to marry for loving and committed gay couples. The Fourth Circuit’s ruling echoes what over 25 other federal and state courts have held: same-sex couples deserve the dignity of marriage, and anti-marriage laws are indefensible. Every day of denial is a day of injustice and tangible harms. It’s time for the Supreme Court to bring the country to national resolution and secure the freedom to marry for all.”
Same-sex couples can marry in 19 states and the District of Columbia, meaning 44% of Americans live in states where gay couples share in the freedom to marry. Recent polling by the Washington Post/ABC News shows 59% of Americans support marriage, including a majority of young evangelicals and Republicans under 45 in other polls.
In total, 29 federal and state rulings in recent months have struck down state bans on marriage for same-sex couples.
Here's the text of Cooper's opening statement, sent by his office:
Today the 4th Circuit Court of Appeals told us that Virginia’s marriage law is unconstitutional. The 4th Circuit has jurisdiction over the federal courts in North Carolina.
Currently, there are 4 cases in North Carolina challenging our state’s marriage law, which is similar to Virginia’s.
Our attorneys have vigorously defended North Carolina marriage law, which is their job. 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 US Supreme Court.
This ruling today doesn’t mean marriages in North Carolina can start right away because no judge has ruled on North Carolina’s law. However, it does predict our law will be struck down.
So here is what we expect will happen next:
• Plaintiffs challenging the North Carolina marriage law in one or more of these 4 pending cases probably will ask federal judges to start proceedings, 3 of which are currently stayed.
• If any of the judges agree to begin proceedings, we believe those judges will be bound by today’s 4th Circuit opinion, and we believe they will be bound to find North Carolina’s marriage law unconstitutional.
• Those rulings themselves will likely not be given immediate affect because of the likelihood that the 4th Circuit’s decision will be stayed and because the judges in North Carolina will likely stay them as well.
• Finally, it is likely that no valid same-sex marriages can occur in North Carolina until the US Supreme Court either turns down the case on appeal or ultimately decides the issue.
Here’s how we got here. Last year the United States Supreme Court in US v. Windsor held that the federal part of the Defense of Marriage Act was unconstitutional at the federal level. They left the question of state marriage laws unanswered but they did give some guidance.
Since the Windsor case, 14 federal district court judges in addition to the 10th Circuit and now the 4th Circuit Courts of Appeal have answered that question. They all decided that marriage is a fundamental constitutional right and that state laws banning it are unconstitutional. The 10 state high courts that have considered this question have also all found their own state’s marriage laws unconstitutional.
Today’s 4th Circuit decision is similar.
After reviewing the 4th Circuit decision and consulting with attorneys here, I have concluded that the State of North Carolina will not oppose the cases moving forward. In addition, the State of North Carolina will acknowledge the 4th Circuit opinion that marriage is a fundamental right and that our office believes that the judges are bound by this 4th Circuit decision.
In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable. Since the US 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.