Two efforts to fast-track federal challenges to North Carolina’s marriage bans appear to have fallen in behind a pivotal Virginia case that goes before the 4th Circuit Court of Appeals next week.
The so-called Bostic case will be heard by a three-judge panel in Richmond, Va., on Tuesday morning. Lawyers for each side will have 30 minutes to make their arguments and answer questions on whether a lower court decision in February that struck down Virginia’s same-sex marriage ban should stand.
A decision could come as soon as late summer. If the unconstitutionality of the Virginia law is upheld, legal experts expect the judges to extend their ruling to the other 4th Circuit states, including the Carolinas and West Virginia. Maryland already has made same-sex marriage legal.
In May 2012, North Carolina voters passed the country’s last constitutional amendment outlawing same-sex unions. Amendment One buttressed an existing state law that limited marriage to a man and a woman
Three federal lawsuits have since been filed against the North Carolina bans, the most recent in U.S. District Court in Charlotte. Two of the cases, including the Charlotte one, have asked for a quick court decision.
With the 4th Circuit case looming, even some of the lawyers involved in the challenges don’t expect that to happen.
Two of the North Carolina cases have been filed in U.S. District Court in Greensboro. In the most recent one, Attorney General Roy Cooper has asked the court to delay action until the 4th Circuit rules. In a brief filed this week, Cooper also asked that the case be thrown out because he and the other defendants have no role in enforcing the state’s marriage laws.
The Charlotte case, which was filed by the United Church of Christ along with a group of North Carolina clergy and same-sex couples, also names Cooper as one of the defendants. It claims that the state’s ban violates freedom of religion by not letting the ministers and a rabbi marry whom they choose.
Attorneys for the ministers and couples expect the attorney general to ask for a similar delay until the appeals court rules.
That case has been assigned to U.S. District Judge Robert Conrad of Charlotte and Magistrate Judge David Keesler.
The 4th Circuit has 16 judges who hear cases: Ten were appointed by Democratic presidents; six by Republicans. President Barack Obama has filled the last five vacancies.
Once described as one of the most conservative appeals courts in the country, the 4th Circuit today is seen as more moderate and more likely to join the judicial momentum loosening or removing same-sex marriage bans nationwide.
The names of the judges deciding the Bostic case won’t become public until the morning of the hearing. It is scheduled to start at 9:30 a.m. Tuesday. The arguments can be heard by the public later the same day.
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