Berger, Tillis bring in outside counsel in same-sex marriage lawsuit

Posted by Craig Jarvis on December 20, 2013 

The leaders of the state Senate and House have retained outside legal counsel to look over the attorney general’s shoulder as he defends the constitutional amendment banning same-sex marriage in a lawsuit.

The attorney, Byron Babione, is with the Arizona-based Alliance Defending Freedom, a Christian law firm that takes on cases of “religious liberty, the sanctity of life, and marriage and family,” according to its website.

Babione will give legal advice free of charge, according to the announcement Friday by the offices of Senate President Pro Tem Phil Berger and House Speaker Thom Tillis.

Republican legislators have a problem with Attorney General Roy Cooper’s personal opposition to the law, as well as other public remarks he has made and his appearance as keynote speaker at a gay-rights event earlier this year. Cooper has said he can set aside his opinions and defend the state in lawsuits as he is required to do.

His office didn’t object in July to the American Civil Liberties Union amending a lawsuit that had been brought against the state by six same-sex couples over a law prohibiting second-parent adoptions (when one partner in an unmarried couple adopts the other's child, regardless of the sex of the couple). The suit now includes a challenge to the state’s ban on same-sex marriage.

Tillis and Berger say they are confident the attorney general’s staff can defend the laws, so long as Cooper maintains a “firewall” between him and his political activities. Cooper is expected to run against Gov. Pat McCrory.

The legislative leaders say the General Assembly is not intervening in the lawsuit at this time. The outside council will simply review what the attorney general’s staff does. The General Assembly passed a law earlier this year giving its House and Senate leaders the authority to mount their own defense when the state is sued.

House Speaker Pro Tem Paul “Skip” Stam, a Republican from Apex, said at the time that the bill was prompted by the refusal of attorneys general in three states to defend same-sex marriage laws.

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