This story originally appeared here and is published by Carolina Public Press through a content-sharing agreement with the Charlotte Observer.
By Bruce Henderson
A federal judge Tuesday became the second in five days to declare North Carolina’s same-sex marriage ban unconstitutional, but he allowed Republican leaders a chance for appeal.
U.S. District Judge William Osteen’s ruling preserves N.C. House Speaker Thom Tillis’ and N.C. Senate leader Phil Berger’s right to challenge his order, potentially to the U.S. Supreme Court.
Osteen, like federal Judge Max Cogburn Jr. of Asheville last week, made clear that a 4th Circuit Court of Appeals ruling in July that same-sex marriage bans are unconstitutional applies to North Carolina.
The Supreme Court announced last week that it wouldn’t review similar decisions in five states, including Virginia in the 4th Circuit. That prompted a flurry of legal filings in North Carolina, including bids by Tillis and Berger to intervene in four challenges of the state’s ban.
Cogburn denied their request, but Osteen granted it on narrow grounds. He allowed them to join the cases “only for the purpose of lodging an objection” to his decision that the Virginia case is binding in North Carolina.
“It’s huge and clearly a correct application of the law,” in light of a 2013 state law authorizing the legislature to mount its own defense when the state is sued, said California law professor John Eastman, who represents the Republican leaders.
Tillis, Berger mum on appeal
Tillis and Berger say Attorney General Roy Cooper hasn’t aggressively defended the state’s 2012 constitutional amendment defining marriage as the union of a man and woman. The judge’s ruling on Tuesday means they can appeal in a case where that typically would be up to the attorney general.
Berger, in a statement, stopped short of saying an appeal would be filed. “Today’s ruling 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,” he said.
They have 30 days to file an appeal. Tillis faces incumbent Democratic U.S. Sen. Kay Hagan, who has supported gay marriage, on Nov. 4.
Eastman has agreed to donate his first $10,000 of legal fees and to cut his hourly rate by a third, Berger and Tillis have said. The ActRight Legal Foundation, which raises money for conservative candidates and causes around the country, would collect donations to defray additional legal costs.
ACLU doesn’t expect about-face
The American Civil Liberties Union, which filed the two cases before Osteen, said an appeal would be futile.
“The legislature can attempt to pursue an appeal if they so choose; however, that would only unnecessarily expend taxpayer resources. North Carolinians can rest assured: The freedom to marry is here to stay,” Chris Brook, the ACLU’s state legal director, said in a statement.
Carl Tobias, a University of Richmond law professor, predicted the 4th Circuit will simply reaffirm that its previous ruling is binding on North Carolina and that the Supreme Court would deny an appeal. “I assume (same-sex marriages) will proceed while the appeals to (the) 4th are taken,” he said by email.
Cooper’s staff said only that its attorneys are reviewing Osteen’s order.
While the Supreme Court refused last week to review appeals court rulings that deemed gay marriage bans unconstitutional, Eastman said that doesn’t mean the high court agrees with those rulings. Some appeals courts haven’t yet ruled on similar challenges, he added. “I think it’s still an open judgment before the Supreme Court,” he said.
Eastman said Tillis and Berger will decide whether to seek a stay of the ruling lifting the 2012 constitutional amendment that defined marriage as the union of a man and woman.
But Eastman acknowledged that it may be difficult to win a stay, temporarily blocking gay marriages. That’s in part, he said, because some appeals courts have not yet ruled on the issue and because Berger and Tillis would have to show they’re likely to win their appeal.
Anne Blythe of The (Raleigh) News & Observer contributed.