Point of View

Cooper must refuse to defend same-sex marriage ban

February 27, 2014 

Wade Bruton was elected North Carolina attorney general in 1960, winning more than 60 percent of the vote. He won re-election in 1964 before losing in the Democratic Primary in 1968.

I know very little about Bruton, but I suspect he was an honorable and decent man. Unfortunately for Bruton, however, history will judge his tenure as the state’s top lawyer based on a brief he filed in support of Virginia’s ban on interracial marriage. Notably, North Carolina was the only state that lined up in support of Virginia’s anti-miscegenation law that the Supreme Court addressed in Loving v. Virginia in 1967. A unanimous Supreme Court soundly rejected Virginia and North Carolina’s position, ruling that “the central meaning” of the equal protection and due process clauses of the 14th Amendment meant that a state could not ban interracial marriage. Today, it is difficult – and upsetting – to imagine that there could have been any other outcome.

Roy Cooper now occupies the same seat Wade Bruton did as attorney general, and he faces a choice about whether to defend North Carolina’s ban on same-sex marriage. Cooper has expressed misgivings about the constitutionality of this prohibition, but so far has continued to defend it in court. While state law directs the attorney general to “appear for the State ... in any cause or matter, civil or criminal” in which North Carolina is a party, Cooper is a duly-elected constitutional officer whose job description, at its core, is to defend the Constitution.

I strongly suspect that most North Carolinians today are troubled by the fact that our state supported Virginia in the Loving case. Troubled by Bruton’s argument that “[i]f a state feels like the life of its people is better protected by a policy of racial integrity as to both races, or for any other race for that matter, then it has the right to legislate in such field.” There is no way to soften or rewrite how damaging and hurtful those words – and the policies it supported – are.

U.S. Attorney General Eric Holder commented earlier this week that state attorneys general are not obligated to defend laws that they believe are discriminatory. He explained, by way of example, that if he had been attorney general in Kansas in 1953, he would not have defended a statute that ordered “separate-but-equal” schools (later struck down in Brown v. Board of Education). Holder further argued that the ongoing effort to win equal rights for LGBT citizens – including the right to marry – was one of “the defining civil rights challenges of our time.”

To date, six state attorneys general – including Virginia’s – have refused to defend bans on same-sex marriage, explaining that they could not faithfully defend laws they believed were unconstitutional. Cooper should take the same stand, avoid repeating his predecessor’s egregious mistake in Loving and vow not to defend North Carolina’s unconstitutional prohibition on marriage equality. His job and history require as much.

Jake Sussman is a civil rights and criminal defense attorney in Charlotte.

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