Legal skirmishing over North Carolina’s gay marriage ban continued Monday, three days after a federal judge in Asheville lifted the statewide prohibition.
U.S. District Judge Max Cogburn Jr. legalized gay marriage in the state Friday when he ruled on a lawsuit filed by clergy challenging the 2012 constitutional amendment defining marriage as the union of a man and a woman.
Republican legislative leaders said Monday they haven’t decided whether to appeal Cogburn’s denial of their request to intervene in the case.
Two cases challenging the ban, meanwhile, remain before a federal court in Greensboro. The two cases address recognition of out-of-state weddings and adoption by couples as well as in-state marriage. While the cases could come to a quiet end, House Speaker Thom Tillis and Senate President Phil Berger hope to win approval to intervene, giving them a slim opening to take up an appeal.
Tillis and Berger say state Attorney General Roy Cooper, a Democrat, hasn’t adequately defended the state ban.
In paperwork filed Monday, plaintiffs in the two cases and Cooper said a ruling by the 4th Circuit Court of Appeals in Richmond legally controls what happens in North Carolina.
The 4th Circuit, which covers the Carolinas, ruled in July that Virginia’s gay-marriage ban was unconstitutional. The U.S. Supreme Court announced last week that it would not review similar rulings in five states, including the Virginia case.
Lawyers from the American Civil Liberties Union, representing the plaintiffs before the Greensboro court, wrote that the Republican leaders’ move was “untimely, futile, and prejudicial” in light of the appeals court ruling.
Cooper’s staff said North Carolina’s ban has been appropriately defended since it was enacted. The response quoted Cogburn’s order on Friday saying the attorney general “vigorously pursued” a defense of the ban.
U.S. District Judge William Osteen, who’s hearing the cases, said he would rule as soon as reasonably possible. Federal courts were closed Monday for Columbus Day, a federal holiday, although the judge still could have ruled.
Tillis and Berger say they have not decided whether to appeal the Asheville judge’s denial of their motion to intervene in that case.
“I’ve sworn to uphold the laws of North Carolina. That’s a vote that 60 percent of the folks that voted 28 months ago decided they wanted as part of our constitution,” Tillis said Monday at an appearance in Charlotte. “We’re going to continue to pursue the case through the circuit court and are very disappointed that the attorney general doesn’t seem to think that he needs to do his job on this matter.”
Tillis added that “we’ll use every option available to us as go through the courts.”
Berger’s staff is “continuing to review our options, but the next steps will largely depend on what Judge Osteen decides,” spokeswoman Shelly Carver said by email.
John Eastman, a California law professor representing Berger and Tillis, said they have 30 days to file a notice appealing Cogburn’s order denying the effort to intervene. That would send the intervention issue to the 4th Circuit of Appeals in Richmond.
“Certainly one of the reasons for intervening is to be in position to appeal (Cogburn’s ruling on the ban) if the attorney general chooses not do to that,” Eastman said.
After his order Friday, Cogburn dismissed as moot a fourth challenge of the marriage amendment. That lawsuit had been filed by two Asheville-area women who were married in New York state last November “but returned home to find they would now be treated as legal strangers.”
Cogburn dismissed their case without ruling on Berger’s and Tillis’ move to intervene in it as well.
South Carolina’s Supreme Court has ordered that no same-sex marriage licenses be issued while the federal lawsuit in that state plays out. The federal judge has set Wednesday as a deadline for motions on how she should move forward.