North Carolina’s Attorney General has announced that he will not defend the state’s gay marriage ban, but why abandon the law now?
In essence, Attorney General Roy Cooper (D) doesn’t think the state stands a chance of winning in court and so, in a prudent move, is saving tax-payer money. He told a news conference on Monday:
“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.”
Cooper had previously made known his opposition to the ban but had stated that he would defend it in court as he believed it was his duty.
North Carolina voters enacted the constitutional amendment known as Amendment 1 by a 61 percent vote in 2012. The ban was particularly controversial because its language prohibited not only same-sex marriage but all marriage-like partnerships whether same-sex or opposite sex. The state’s GOP was instrumental in passing the ban by advancing arguments that were particularly spurious: such as that the ban would protect children, and that it would ensure that heterosexual marriages could not be harmed by a judge overturning the state’s existing statutory ban. Interestingly, these are arguments that North Carolina’s attorney general now feels will not work in court today against the four legal challenges brought against Amendment 1 — but what prompted this change?
Cooper’s decision stems from the 4th Circuit Court of Appeals ruling this week to uphold a federal district court’s decision to strike Virginia’s ban on same-sex marriage. In the 4th Circuit’s 2-1 decision, which was the first of its kind in the more conservative South, the justices said that while Virginians may have voted 57 percent in favor of the constitutional amendment in 2006, the ban “impermissibly” infringes on gay peoples’ “fundamental right to marry.” This is the second ruling in as many months to specifically cite gay marriage as part of the fundamental right to marry, and for that reason is particularly important as marriage equality supporters eye the ultimate goal of winning at the Supreme Court of the United States.
Appellate Judge Henry F. Floyd writing for the majority offered this definitive and concise summation of the situation:
“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. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”
It’s likely that Virginia state will now seek a stay on that decision, and then perhaps a hearing from the full appellate court, but the more immediate and important facet of this ruling is that the 4th Circuit covers North and South Carolina as well as West Virginia, throwing their bans into doubt.
With North Carolina’s attorney general saying that he will no longer defend the ban, it’s expected that the four cases waiting to be heard at the district court level against North Carolina’s ban will now move at a pace and in a relatively straightforward manner, with Cooper’s announcement likely to feature prominently and may even be cause for summary judgment without the need for a full trial.
Of course, another party connected with North Carolina’s administration could take the Attorney General’s place, but the damage is done: he believes the law to be indefensible in the wake of the 4th Circuit’s determination and so any legal arguments from the state after this will bear that mark.
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