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Same-sex marriage and the AG’s job

It’s difficult not to see where same-sex marriage bans are headed – both in the courts and the court of public opinion. The last four states to vote on the issue have embraced the right of homosexuals to marry (after going 0-for-32 before that) and since last summer alone, state and federal judges have overturned same-sex marriage laws in a dozen states.

Does that mean same-sex marriage is inevitable in North Carolina? It’s a question at the heart of N.C. Attorney General Roy Cooper’s announcement last week that he would no longer defend North Carolina’s constitutional amendment banning homosexual marriage. That amendment, which voters approved in 2012, is being challenged in four cases now in U.S. District Court.

Cooper’s decision came in the wake of the 4th U.S. Circuit Court of Appeals striking down a Virginia ban on same-sex marriage last month. The 4th Circuit includes North Carolina, and Cooper says the ruling from the three-judge panel means that it’s “futile” for his office to continue defending our state’s ban in District Court. The ban’s supporters, including N.C. House Speaker Thom Tillis and Senate leader Phil Berger, say it’s Cooper’s job to keep fighting.

There’s little doubt politics is playing some role here. Cooper, a Democrat, is widely considered his party’s best candidate for governor in 2016. Tillis, a Republican, is challenging U.S. Sen. Kay Hagan in November. But politics aside, Cooper has defended the law thus far. His refusal to continue at this point is an acknowledgment of legal and practical reality.

With its ruling in Bostic v. Schaefer, the 4th Circuit provided clear guidance to District Court judges. In his majority opinion, Judge Henry F. Floyd declared that same-sex marriage bans prohibit homosexuals “from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

That’s not the kind of narrow ruling that would’ve left open the door for Cooper to argue that North Carolina’s ban was legally distinguishable from Virginia. According to the 4th Circuit, it doesn’t matter. Any same-sex marriage ban is invalid.

That means for now, there’s no fight for the attorney general to wage. The best course, which Cooper is choosing, is to wait. One of the Virginia defendants has already waived the right to appeal to the full 4th Circuit, signaling a likely Supreme Court appeal. In North Carolina, District Court judges are expected to follow the 4th Circuit’s lead on same-sex marriage, but any rulings will be stayed until the Supreme Court finally settles things.

That doesn’t leave Cooper off the hook, by the way. Former Carrboro Mayor Mark Chilton, who won the Democratic primary for Orange County Register of Deeds and faces no opposition in November, has promised to begin issuing marriage licenses to same-sex couples upon taking office. If Chilton does, Cooper will be called on to enforce our state’s same-sex ban. He should, as he would any statute, until it’s no longer the law.

That will happen soon, we hope and believe. Until then, the attorney general has decided not to waste the state’s time and resources on a fight that’s being decided elsewhere. That’s not abdicating his responsibility. That’s living up to it.

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