North Carolina dominated America’s narrowing debate over gay marriage Thursday, with GOP leaders hiring one of the country’s best-known opponents to same-sex unions to defend the state’s ban in court.
California law professor John Eastman took little time getting involved in the fight, filing motions in two of North Carolina’s marriage cases to give the General Assembly a role and more time to make its arguments.
In a ruling Thursday night, U.S. District Judge William Osteen gave legislators only part of what they wanted – denying them the eight days they sought to review the files, and setting a noon Friday deadline for the Republicans to file expanded arguments.
In an order submitted by Osteen late Thursday, the judge said the legislators had not persuaded him of their need for extra time.
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The legislators, Osteen said, “allege that additional time is required to ‘investigate the files and conduct appropriate research in order to adequately prepare the pleading.’”
Osteen said he was aware that only a short time had passed since the Supreme Court decision, but “these cases have been pending for a lengthy period of time and the defendants have been clear in their position” that what happened in Virginia could determine what happened in North Carolina.
Eastman, chairman of the National Organization for Marriage, an activist group that supports traditional marriage and other religious issues, told the Observer that the battle over marriage here is far from over.
He was hired by House Speaker Thom Tillis and Senate President Pro Tem Phil Berger, in part because Democratic Attorney General Roy Cooper has stopped defending the state’s marriage laws in court.
On Monday, those laws seemed all but dead after the Supreme Court stepped aside and allowed lower court rulings to stand that found same-sex marriage bans in Virginia and four other states unconstitutional. Because of the way the federal court system is organized, six other states were affected, including the Carolinas.
Of those 11 states affected by Monday’s action, eight have either approved same-sex marriage or have taken steps to do so. In South Carolina and Kansas on Thursday, the court battle was still taking shape.
In North Carolina, however, the fight escalated, and court decisions that had been expected to strike down marriage bans at any moment suddenly became far less clear.
At the very least, the hiring of Eastman, a conservative legal activist on issues across the country, signaled that Tillis and Berger planned to back up their pledge to fight for North Carolina’s marriage laws for as long as they can. That includes the constitutional ban, commonly known as Amendment One, which voters passed in 2012.
Their resistance flies in the face of legal experts and marriage-equality advocates who say the courts have already ruled and North Carolina’s laws, like those in nearby Virginia, are doomed.
The U.S. 4th Circuit Court of Appeals, which has jurisdiction over the Carolinas, Virginia, West Virginia and Maryland, ruled in July that Virginia’s same-sex marriage ban was unconstitutional. That decision was put on hold by an appeal to the U.S. Supreme Court.
On Monday, the country’s highest court decided not to get involved, and Virginia started issuing marriage licenses to gay couples that afternoon.
The 4th Circuit ruling also takes precedence in the Carolinas, where at least four same-sex marriage lawsuits are in the federal court system. For most of the week, attorneys representing gay couples and other groups have urged their respective judges to act. Cooper has told the courts that the Virginia ruling should be applied here. His Republican counterpart in West Virginia has done the same and gay marriages are expected to begin soon.
Interviewed by phone in California, Eastman argued differently. He said Justice Anthony Kennedy’s decision Wednesday to block the overturning of Idaho’s marriage ban “is a pretty strong indication that this is not resolved.”
“I find it particularly troubling that in North Carolina, the attorney general says he is bound by a Virginia decision, a case in which his state had no say,” said Eastman, a former law clerk to Supreme Court Justice Clarence Thomas.
He also criticized Virginia’s attorney general for making concessions in the case “that no reasonable attorney would ever make.”
“We will not be making those concessions, and we expect a different outcome,” Eastman said. “If not in the 4th Circuit Court of Appeals, then we will ask the Supreme Court to get involved.”
As chairman of the National Organization for Marriage, Eastman unsuccessfully tried in May to take over the defense of Oregon’s marriage laws in court after the attorney general there refused to defend them.
Carl Tobias, a University of Richmond law professor and frequent commenter on legal affairs, predicts Eastman will fail in North Carolina, too.
“He certainly has experience in last-minute attempts to intervene,” Tobias said. “Are North Carolina taxpayers paying for this gambit? If so, they should be incensed because it is a pure waste. North Carolina cannot win.”
Jake Sussman, the lead attorney in a Charlotte-based court challenge to the marriage laws, said the legislature’s effort to become involved in the long-running cases at their final stage “is strange, to say the least.”
“We are close to the end of this litigation and ready to banish Amendment One to the dustpan of history,” Sussman said. “We believe this is an unnecessary use of taxpayer money and judicial resources and seeks only to delay the inevitable.”
‘A stroke of a pen’
Eastman joins a defense team that includes Charlotte attorney Robert Potter. According to a statement from Berger and Tillis, Eastman has agreed to donate his first $10,000 of legal fees and to cut his hourly rate by a third. The ActRight Legal Foundation, which raises money for conservative candidates and causes around the country, will collect donations to defray additional legal costs.
In 2013, the General Assembly passed a law giving its leaders the authority to mount their own defense when the state is sued. Lawmakers took the step after the attorneys general in three other states announced they would no longer defend marriage laws.
Mark Harris, pastor of First Baptist Church of Charlotte and the leader of the campaign that helped pass the state’s constitutional marriage amendment in 2012, applauded the legislature’s resistance on Thursday.
“I stress all the time that it was only 29 months ago, not 29 years, when the people of this state voted that marriage would be defined as between one man and one woman,” Harris said. “There is the sense among a great number of people across the state that something is wrong with the system when ... a stroke of a pen or the hit of a gavel can put our marriage amendment in jeopardy.”
The referendum, which Republicans scheduled during the May primary, drew 35 percent of the state’s electorate and passed with 61 percent of the vote. Given the limited turnout, the percentage of registered voters who approved the ban is the lowest in the South, the Center for Southern Studies says.
A few blocks away from Harris’ church, Scott Lindsley continued to keep watch at the Mecklenburg County Courthouse for the time he and partner Joey Hewell can legally apply for a marriage license. He said the Republican resistance is a waste of time.
“They either don’t understand the process or they refuse to accept the outcome that was handed down Monday,” Lindsley said. “Either way, we’ll be elated if we can get our license today, tomorrow or next week. What they’re doing won’t accomplish anything.”
Asked if he had anything to say to Tillis, a resident of Cornelius and a GOP candidate for U.S. Senate, Lindsley replied: “Please quit looking at all of us as a political maneuver or a concept and realize there are real people that you are hurting.”
Who’s in charge here?
Eastman’s hiring raises a key question: In divided North Carolina, who speaks for the state on the issue of marriage?
Gov. Pat McCrory, a Republican, said earlier this week that he didn’t agree with the courts’ decision, but that continued appeals appear fruitless. Attorney General Cooper, a Democrat expected to run for governor in two years, has said the Virginia ruling applies to North Carolina.
Republican leaders of the General Assembly, who passed the amendment approved by voters in 2012, have vowed to fight on.
Even so, the state remains within a stroke of a pen by Osteen or U.S. District Judge Max Cogburn of striking down its ban against same-sex marriage. Cogburn took over the Charlotte-based case on Thursday.
Osteen must approve any intervention by the Eastman and legislators, and legal experts from Tobias to UNC law professor Maxine Eichner say there are no guarantees he will do so.
Meanwhile, Eastman’s appointment, while cheered by supporters of traditional marriage, drew criticism from gay activists who say they are troubled by what the activist law professor has said or written about homosexuality in the past.
He has written that homosexuality is a modern-day indication of “barbarism.” In 2010, while running for attorney general of California, he told a gathering of conservative activists that voters have a right to respond to same-sex marriage and “other insufferable government policies by rising up and abolishing those governments.”
Eastman said he also is an outspoken supporter of traditional marriage and “its phenomenal success in raising children. ... We have to be very careful before we redefine it.” Anne Blythe of The (Raleigh) News & Observer, and Hope Paasch, Maria David and Mark Price of the Observer staff contributed.