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Tillis, Berger to appeal same-sex marriage ruling, attorney says

The attorney for North Carolina’s top two legislative leaders says they have decided to appeal a judge’s decision this week that legalized same-sex marriage in the state.

U.S. District Judge William Osteen of Greensboro ruled on Tuesday that state laws limiting marriage to a man and a woman are unconstitutional. Osteen, a judicial appointee of President George W. Bush, said the 4th Circuit Court of Appeals decision in July to strike down a similar law in Virginia established legal precedent in North Carolina, too. Both states are within the 4th Circuit’s jurisdiction.

Osteen – and U.S. District Judge Max Cogburn before him – issued their opinions within days of a U.S. Supreme Court decision not to review same-sex marriage rulings affecting Virginia and four other states.

House Speaker Thom Tillis and Senate President Phil Berger, two powerful GOP lawmakers who helped put the constitutional marriage amendment before state voters two years ago, tried at the last minute to defend the state’s marriage laws before both judges.

Cogburn, appointed to the bench by President Barack Obama, refused. Osteen, however, said the two Republican lawmakers could appeal his decision that the appeals court’s ruling in Virginia is binding for North Carolina.

At the time of Osteen’s ruling, lawyer John Eastman said his clients had not yet decided whether to go forward with an appeal.

On Thursday, Eastman, a California law professor and conservative legal strategist, said his clients would do just that, and that they would file their appeal to the 4th Circuit within the required 30-day window.

Shelly Carver, a spokeswoman for Berger, confirmed that the legal fight will press on, and that additional details were being finalized by the legislators’ attorneys, who also include Robert Potter of Charlotte.

Lawyers for the groups that successfully challenged North Carolina’s same-sex marriage ban said any appeal amounts to a costly exercise in futility. (Republican Gov. Pat McCrory has already pledged to abide by the courts’ gay-marriage rulings.)

“The reality is the courts have already spoken on this issue, and the freedom to marry is here to stay,” said Chris Brook, legal director for the American Civil Liberties Union of North Carolina. “These appeals are completely frivolous and will do nothing but waste taxpayer dollars.”

Jake Sussman of Charlotte, lead attorney in the case that led to Cogburn’s ruling, said the North Carolina judges joined 25 counterparts from around the country in finding same-sex marriage bans unconstitutional.

Many legal experts say an appeal faces extremely long odds in the 4th Circuit, given the similarities between the Virginia and North Carolina laws.

Tillis is in a neck-and-neck U.S. Senate race against Democratic incumbent Sen. Kay Hagan, and he has already made his defense of the state’s marriage laws a campaign issue. The question becomes whether the appeal will be filed before or after the Nov. 4 election.

Carl Tobias, a University of Richmond law professor who has followed the North Carolina legal fight, said Tillis and Berger appear to have slowed their defense, and he wonders why Eastman has not sought an immediate stay of Osteen’s order from the appeals court.

“It is tempting to suggest that the intervention was all about politics, but who knows?” Tobias said. “The risk of pushing too fast is they will look foolish when the 4th Circuit says no.”

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