Inside the Courts

Tab for fighting same-sex marriage grows

Charlotte attorneys Jake Sussman, right, and Luke Largess celebrate the October 2014 court order that struck down North Carolina’s ban on same-sex marriage.
Charlotte attorneys Jake Sussman, right, and Luke Largess celebrate the October 2014 court order that struck down North Carolina’s ban on same-sex marriage. Robert Lahser

Same-sex marriage has been legal in North Carolina for more than a year, but the hits – to taxpayers – just keep coming.

Last week, the parties who went to the mat over the issue in Greensboro federal court settled some unfinished business. The attorneys who challenged Amendment One collected their winnings. It’s the taxpayers who will write the check.

If you recall, back in 2014 North Carolina had three challenges to the state’s constitutional amendment limiting marriage to a man and a woman up and running in the federal courts. All of them appeared moot when the Fourth Circuit Court of Appeals, which has jurisdiction over the Carolinas and two other states, struck down Virginia’s marriage ban on constitutional grounds. Under our system, the decision in the Virginia case also applied here.

Except, Republican legislative leaders Thom Tillis, Phil Berger and later Tim Moore called for a last-minute stand for traditional marriage and hired a conservative advocate from California to handle their case. To legal scholars, this was like Don Quixote putting a little extra in Sancho Panza’s check to watch his flank while he charged the windmills. In October, as expected, U.S. District Judge Max Cogburn struck down the state law in a Charlotte marriage case, and the Greensboro judge followed a week later.

When it came to collecting attorney fees, the winning legal team in Greensboro billed the office of Attorney General Roy Cooper almost $255,000 – an amount it still hopes to collect. The late intervention by the GOP lawmakers after the decisive Fourth Circuit ruling didn’t go unnoticed either. The marriage-equality lawyers said Berger and Moore (who replaced Tillis) owed more than $56,000. On Jan. 20, all sides agreed to reduce that amount to $44,501.36. That goes on top of the $107,000 the legislative leaders had spent on appeals handled by their private lawyers through February.

The amount could have been higher, except the lawyers in the decisive Charlotte case, including Jake Sussman, decided ahead of time not to bill their clients – or the state.

“What I still find deeply troubling is that Phil Berger and Thom Tillis, and later Tim Moore, used taxpayer money to hire private lawyers at the 11th hour of the marriage litigation in a futile and transparently political effort to interfere with the inevitable,” Sussman says. “Those efforts spawned months of fruitless appellate litigation that went nowhere, but wasted a lot of taxpayer money.”

The same Charlotte legal team has sued the state again – this time over the so-called “magistrates’ law.” It allows magistrates and other officials to opt out of performing same-sex weddings or other sworn duties that violate their religious beliefs. Supporters say the law upholds personal liberties. Critics say it’s an unconstitutional end run around marriage equality.

If the Charlotte lawyers win this time, it remains to be seen if they’ll again waive the bill.