By M.H. Cavanaugh – BarbWire guest contributor
The announcement on Monday by the U.S. Supreme Court that they would not take up any same-sex marriage cases on appeal resulted in quick action by the ACLU asking two federal judges in the state, U.S. Chief Justice William Osteen and U.S. District Judge Max Cogburn to overturn North Carolina’s constitutional marriage amendment.
Justice Osteen had previously placed the cases against North Carolina’s marriage amendment on hold, waiting to see what the Supreme Court would do about the U.S. 4th Circuit Court of Appeals ruling that Virginia’s marriage amendment was unconstitutional. North Carolina falls under the 4th Circuit’s decision. With the high court unwilling to consider the appeal on the Virginia ruling, Osteen lifted his stay on the cases against North Carolina’s marriage amendment and declared they could proceed.
North Carolina’s attorney general, Roy Cooper, had already stated he would not defend the state’s marriage amendment, arguing it was obligated to accept the 4th Circuit’s ruling as binding on North Carolina. Legislative leaders, Senate President, Sen. Phil Berger and Speaker of the House Thom Tillis, however, were authorized by legislation that passed in 2013 to intervene in the cases, if Cooper was unwilling to fulfill his constitutional obligations to the state.
On Thursday, the two legislative leaders moved to intervene on behalf of the more than 60 percent of North Carolina voters who sought to elevate state law defining marriage as one man and one woman into the state’s constitution. Legislative leadership hired a high-powered conservative legal expert, John Eastman, to lead the case in defense of the state’s amendment. Eastman is a former Republican candidate for California’s office of attorney general, the former dean of Chapman University’s school of law, and chairman of the National Organization for Marriage.
According to WRAL News in Raleigh, the 13 page brief filed by Berger and Tillis on Friday morning argues:
- “Marriage law shouldn’t be subject to ‘strict scrutiny.’
- “The Virginia case is ‘tainted’ because the attorney general there defending the ban made unnecessary concessions’ on matters of precedent.
- “Even if Osteen rules against the marriage ban, the case should be left open because the U.S. Supreme Court this week allowed Idaho an emergency stay on a ruling overturning a similar ban.”
But by late Friday afternoon, Judge Cogburn struck down North Carolina’s marriage protection amendment. According to the Raleigh News and Observer and other media reports, Cogburn said, “The issue before this court is neither a political issue nor a moral issue…It is a legal issue and it is clear as a matter of what is now settled law in the 4th Circuit that North Carolina laws prohibiting same-sex marriage, refusing to recognize same-sex marriages originating elsewhere, and/or threatening to penalize those who would solemnize such marriages are unconstitutional.”
Cogburn’s ruling was handed down less than an hour after Osteen entered an order on late Friday postponing the decisions in the challenges before his court until next week.
Dr. Mark Creech, executive director of the Christian Action League, said, “I have been grieving about the prospect of this likely outcome since Monday. It’s heartbreaking for me and all of us who know the legal, public, and personal storms that this decision will undoubtedly ensue. I have been a minister of the gospel of Christ for thirty-five years. Over again and again, I have warned individuals, begged and pleaded with them, even taken necessary steps in law to try to save them from acts of self-destruction. Nevertheless, you can’t save anyone who doesn’t want to be saved. I am extremely skeptical of polls that claim a majority of Americans support same-sex marriage, but even if it were true I must conclude you can no more save a culture that doesn’t want to be saved any more than you can save an individual. Still, we must always try. My colleagues and I have done everything we can to preserve real marriage and prevent state sanctioning of the counterfeit. We will continue the fight. It is only those who fail to understand this issue, who would scoff and say there will be no tragic consequences to this action.”
Creech added, “I want everyone – those who worked and voted to protect marriage to know that we didn’t lose – our success was stolen by a runaway federal judiciary – one that has erroneously held marriage and the people of our state in contempt. We should all be sufficiently warned, if activist judges can redefine something of such fundamental import as marriage, they can redefine anything. Unless the leadership of our state and nation is willing to take bold steps to protect us from their abuses of power, our entire system of governing is under threat of further abuses.”
Registers of Deeds in counties across the state kept their offices open late to accommodate same-sex couples who wanted to marry.
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