Fourth Circuit ruling might clear way for N.C. gay marriage

North Carolina’s constitutional ban on gay marriage is likely on its last legs, according to both the state Attorney General and the N.C. chapter of the American Civil Liberties Union.

A federal appeals court on Monday ruled that Virginia’s same-sex marriage ban is unconstitutional, a move that upheld a decision made by a lower court earlier this year. The 4th Circuit’s jurisdiction covers four other states, including North Carolina — meaning the court's opinion will apply to any federal legal challenges involving the state's gay marriage ban.

“Our law will almost surely be overturned as well,” said N.C. Attorney General Roy Cooper after the decision.

At a press conference Tuesday in Raleigh, Chris Brook, legal director of the N.C. ACLU, said the organization would quickly seek to move forward with its two federal lawsuits challenging the state's ban, known as Amendment One, that have been stalled.

"We're asking the court to stop the enforcement of Amendment One and allow gay and lesbian couples to get married throughout the state of North Carolina," he said.

'Days are numbered'

If no further action is taken on the Virginia case, same-sex marriages could begin in that state after 21 days. Brook said he expects the defendants in the 4th Circuit case will appeal the decision and request a stay, which would put gay marriage in Virginia on hold.

Regardless, he said, the ACLU hopes to push ahead with its district court cases in North Carolina during the next few weeks.

"[The 4th Circuit decision] makes very clear that Amendment One's days are numbered," he said.

Nineteen states, plus Washington, D.C., have legalized gay marriage — a dozen states have joined the list in the last two years. 

North Carolina is the most recent state to ban same-sex marriage in its constitution, which voters approved as a ballot referendum in May 2012. If the latest string of courtroom decisions is any indication, it might be the last.

No defense

In a significant shift, Cooper said at a press conference Monday that he would no longer defend the state’s gay marriage ban in court. Cooper, a Democrat, had said previously that while he personally supports gay couples’ right to marry, he would defend the state’s ban in four federal cases challenging it.

Dozens of cases nationwide have cropped up following the U.S. Supreme Court’s decision in June 2013 to strike down a key part of the federal Defense of Marriage Act, which granted federal recognition and benefits to married gay and lesbian couples.

Fourteen federal district judges, plus the 10th Circuit and now the 4th Circuit, have ruled against bans on same-sex marriage since the Supreme Court’s decision.

Cooper said that any effort spent fighting for the state’s gay marriage ban would be futile, given that the 4th Circuit's ruling is binding in North Carolina.

“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,” Cooper said. “Since the U.S. Supreme Court ruled in the Windsor case, all the federal courts have rejected these arguments each and every time."

“Simply put, it’s time to stop making arguments we will lose.”

Nationwide shift coming to Carolina

Lee Storrow, a Chapel Hill Town Council member, said he remembers how difficult it was for LGBT rights advocates in North Carolina to watch the gay marriage ban pass overwhelmingly — it was approved by 61 percent of voters. 

Now, Storrow said, the tide has not only shifted nationally, but within the state.

“To be part of this movement that’s happening across country to legalize gay marriage and recognize that gay and lesbian couples have a right to marriage and all the recognition that comes along with it — it’s thrilling,” he said.

Chris Sgro, executive director of gay rights advocacy group Equality N.C., said he's hopeful the overturning of Virginia’s ban could signify change in North Carolina, and soon.

“While it’s not surprising — this being the 28th in a string of federal rulings all upholding the freedom to marry — it’s still incredibly important for North Carolina,” Sgro said. “This makes it very clear that Amendment One is unconstitutional and I’m personally excited by that.”

Since the ban passed in 2012, Sgro said he’d seen a 10-point shift in polling data on the issue of same-sex marriage, and believes the state is heading toward a majority in support. 

“I really believe the state was founded on principles of equal opportunity,” Sgro said. “As more and more people tell their stories and the more we talk about the issue of same-sex marriage, you’re going to continue to see a fast shift in support for marriage equality.”

Looking forward 

Still, Cooper said, even if the North Carolina ban is on shaky legal ground, gay and lesbian couples in the state will have to wait some time — though it's unclear how long — before they can legally marry, because no judge has ruled the ban unconstitutional.

He said it’s likely that the gay marriage question will ultimately be decided by the Supreme Court.

And while Sgro said he thinks North Carolina could see marriage equality within the next year, marriage rights won’t be the end of the conversation for the LGBT community.

“We have a lot to go, from employee non-discrimination to safe schools,” he said. “If a person can get married to their same sex partner, they can still legally be fired the next day by their employer [because of their sexual orientation].”

But there is good reason to be optimistic about the future of same-sex marriage, Sgro said.

“I’m really heartened — while it is a step forward, it’s becoming a less and less partisan issue,” he said.

"As different judges at different levels are interpreting the [U.S.] Constitution the same way, it makes it harder and harder for judges to interpret it differently.”

state@dailytarheel.com