Federal judge overturns NC same-sex marriage ban

Same-sex marriage became legal in North Carolina on Friday, with a federal judge ordering the state to immediately set aside its ban.

With a stroke of his pen in a Charlotte-based lawsuit, U.S. District Judge Max Cogburn of Asheville struck down the state’s laws restricting marriage to a man and a woman.

In doing so, he erased Amendment One, the country’s last voter-approved, constitutional marriage ban, and a cultural, spiritual and political lightning rod in North Carolina.

The attorney for Republican legislative leaders trying a last-ditch effort to preserve the ban said Friday night that an appeal is possible. But for now it appears limited to narrow grounds, and legal experts said it had little chance of success.

“We won!” said Charlotte lawyer Jake Sussman, lead attorney for a coalition of gay couples, religious leaders and groups who argued that the state bans violated their freedom of religion and equal protection under the law.

Gov. Pat McCrory said the state would comply. “The administration is moving forward with the execution of the court’s ruling and will continue to do so unless otherwise notified by the courts,” he said.

Mecklenburg Register of Deeds David Granberry said the marriage licenses would be made available to gay couples on Monday morning, only because he didn’t have permission to stay open late Friday.

Elsewhere, the wedding march had already begun. In Raleigh, the county’s register of deeds issued her first same-sex marriage license at 5:44 p.m., and a ceremony quickly followed.

In Asheville and Greensboro, the county register of deeds offices stayed open hours past closing time to handle the rush of same-sex couples.

And while Mecklenburg will lag behind other counties in issuing marriage licenses, gay couples and their supporters wasted little time celebrating.

Joey Hewell of Charlotte held up a copy of Cogburn’s order outside the register’s office.

“This is the official death certificate of Amendment One,” he said to a gathering crowd.

He and his partner of 12 years, Scott Lindsley, had spent three days outside the office, awaiting a decision. He said they will be back Monday to pick up their marriage license.

“It means the world,” he said. “There are so many great things that come along now and so many worries that go away.”

Cathy Fry and Joanne Marinaro, who have been together for 28 years, went to the courthouse for a license but drove home without one. Then their phones started buzzing. The ruling had come down.

“We could burst out in tears right now,” Fry said. “That’s how happy we are.”

Is it over?

It remained unclear Friday what will happen with two other North Carolina same-sex marriage cases in Greensboro.

Both are being heard by U.S. District Judge William Osteen, who held up a final ruling after lawyers for House Speaker Thom Tillis and Senate President Phil Berger asked to join the cases.

Cogburn, a former federal prosecutor appointed to the bench by President Barack Obama, did not wait.

First he denied the Republican leaders’ motion to intervene. Minutes later, he filed his final order, saying that the state’s ban violated the plaintiffs’ 14th Amendment rights of equal protection under law.

In doing so, the state’s newest marriage lawsuit, which was filed in April, became the first to trigger a decision.

“The speed of this is breathtaking. It makes the mind reel,” said Maxine Eichner, a UNC law professor who expected a ruling out of Greensboro first.

While Eichner acknowledged the possibility of appeal, she added, “I suspect the fight on this issue is over in North Carolina.”

Cogburn’s ruling capped off a 48-hour paper chase of motions and counter motions, arguments and rebuttals. Much of it was part of a Republican effort to delay what appeared inevitable Monday, when the Supreme Court announced it would not review lower court marriage rulings in five states.

One of those decisions, which struck down a same-sex marriage ban in Virginia, came from the 4th Circuit Court of Appeals. It has jurisdiction over the Carolinas. The Supreme Court’s decision freed up the lawsuits that had been put on hold until the high court made its thinking known.

Yet Tillis, who’s running for the U.S. Senate, and Berger pushed on. Through their attorneys, conservative activist John Eastman and Robert Potter of Charlotte, they attempted to delay the judges’ decisions so their arguments could be heard.

Legal experts said they had little chance of success. Cogburn proved the experts right.

In a joint statement after the ruling, Berger and Tillis said they were defending the voters who passed Amendment One in 2012 with 61 percent approval.

Republican legislators, who put the measure on the ballot, scheduled the vote for the May primary two years ago. Turnout was 35 percent, and the percentage of registered voters who approved the amendment was the smallest in the South.

“While we recognize the tremendous passion on all sides of this issue, we promised to defend the will of North Carolina voters because they – not judges and not politicians – define marriage as between one man and one woman and placed that in our state constitution,” the statement from Berger and Tillis said.

“It is disappointing this decision was made without North Carolina’s law receiving its day in court, and we will continue to work to ensure the voice of the voters is heard.”

Eastman, a California law professor and the lawmakers’ lead attorney, told the Observer on Friday night that Tillis and Berger are considering their options and that the marriage fight is not over.

While the lawmakers’ can only appeal Cogburn’s refusal to allow them to join the Charlotte case, Eastman said they remain hopeful Osteen, a judicial appointment by President George W. Bush, will let them intervene. Osteen’s decision, which could come at any time, would strengthen the Republicans’ chances of appeal, Eastman said.

Carl Tobias, a University of Richmond law professor who has been following North Carolina’s marriage fight, said the legislators’ chances of success are diminished because they stayed out of the two-year fight until the end.

“The last-minute pleas are less persuasive,” Tobias said. “Courts do give some deference to elected officials. But it is difficult to see what they are doing here except wasting time, money and energy for partisan political purposes that will lead nowhere.”

In both Carolinas, the marriage issue has has been divisive. Many of the North Carolinians who voted in favor of Amendment One did so for spiritual reasons, believing that marriage is sacred and homosexuality a sin.

Yet polls show that attitudes here have become far more supportive of marriage equality, particularly among young voters – the generations to come.

At the Charlotte home of Fry and Marinaro, an impromptu celebration broke out on Friday night. The couple’s 23-year-old daughter, Kaley, drove down from Asheville to join in.

She sobbed at the prospect of attending her parents’ wedding.

“I’m overwhelmed,” she said, “and so joyful.”

Mark Price, Maria David, Eric Frazier, David Perlmutt and Hope Paasch contributed.

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