The Republican leaders in the North Carolina legislature are not yet ready to let gay marriages occur in this state.
Phil Berger, president pro tem of the N.C. Senate, and Thom Tillis, speaker of the N.C. House of Representatives, are seeking to intervene in two lawsuits challenging the 2012 amendment to the N.C. Constitution that defines marriage as a union between a man and a woman.
Charlotte lawyer Robert Potter informed U.S. District Judge William Osteen on Wednesday of the lawmakers’ plans. Osteen then notified the parties in the cases that Potter planned to file court documents on Thursday with a request that the legislators become parties with standing in the lawsuits.
The request could slow down what many see as the inevitable go-ahead for gay marriages in this state.
The Charlotte Observer also is reporting that Berger and Tillis have hired John Eastman, chairman of the board of the National Organization for Marriage, to lead their effort. Eastman’s group has been involved in the legal defense of traditional unions between a man and a woman.
Eastman told the Observer that he could neither confirm nor deny his involvement in the North Carolina cases “until I speak to some folks about what’s happening.”
The U.S. Supreme Court announced on Monday that the justices would not take up challenges of lower-court decisions that struck down gay marriage bans in five states.
The decision had a domino effect across the country, opening the possibility for gay marriages to happen immediately in some states and for more bans to be overturned in others.
North Carolina is among those states because of a July ruling by the 4th Circuit Court of Appeals striking down a Virginia same-sex wedding ban.
Lawyers involved with the challenges to North Carolina’s constitutional amendment agreed months earlier in the legal process that there was no legal distinction between the Virginia ban and North Carolina ban. Any ruling in the Virginia case has sweeping implication for North Carolina because they are in the same U.S. appeals circuit.
Earlier this week, Berger and Tillis said they would seek to uphold the state’s constitutional ban on gay marriage. At the time, Chris Brook, the legal director of the American Civil Liberties Union of North Carolina, said such an effort would be a “futile” challenge that would use a lot of state dollars that could be better spent on education programs or economic woes.
North Carolina Attorney General Roy Cooper also said this week that he though the continued defense of the gay marriage ban was “futile.”
It was unclear how long Osteen would wait for Potter to file motions for the legislators. Potter told The Charlotte Observer that it was “possible” he would file something Thursday, “but I haven’t done anything yet.”
Osteen would have to approve intervention and legal analysts have questioned what new arguments the legislators would bring that would warrant the action.
Brook, legal director for the ACLU of North Carolina, said earlier this week that legislation approved a year ago allowed legislative leaders to intervene in cases when they did not think them Democratic N.C. Attorney General was adequately representing them.
“They had more than a year to do this if they felt their interests were not being represented,” Brook said on Tuesday. “They failed to do so.”
In another legal twist, U.S. District Judge Max Cogburn took over a case filed by clergy in the western part of the state. That case, which had been presided over by U.S. District Judge Martin Reidinger, uses a different legal strategy with the challenges in the Greensboro federal court. The clergy have argued that the amendment violates their first amendment right to practice religion freely.
It was unclear Thursday morning what impact the change in judges would have on any immediate action in that case.
The uncertainty did not dampen the spirits of gay rights advocates expecting history any moment.
Chad Biggs, a Wake County sheriff’s deputy, and his partner, Chris Creech, also a sheriff’s employee, are set to receive Wake County’s first same-sex marriage license, said Laura Riddick, the register of deeds for Wake County.
Riddick’s office was working with software vendors to prepare the county’s databases for changes to the marriage application, while reporters traded gossip about the judicial machinations, which were expected to end within hours or days.
There were no lines of couples by 11 a.m., but court employees were casing the lobby, planning for potentially large crowds and trying to keep camera crews out of the way.
Biggs, who has been engaged for more than two years, was on duty at the courthouse in full uniform on Thursday morning. Riddick had his number on a sticky note attached to her identification badge, ready to call him as soon as word arrived. She had been brushing up on her clerical skills so she could issue the license herself, she said.
She got to know Biggs because he often is stationed near their office, and they’d talk about raising children – Biggs has a 12-year-old daughter – and about Biggs’ wedding-planning business.
Riddick acknowledged that some people might be upset by her decision to save the first license for a county employee, but she stood by her plan.
“He’s very talented – very talented, and he is so unbelievably kind,” she said of Biggs. “He takes time with everyone that enters this courthouse.”
Some of the Triangle’s clergy also are preparing for a momentous shift.
“I know there are a number of folks from my congregation waiting to marry today,” said the Rev. John Saxon of the Unitarian Universalist Fellowship of Raleigh. He showed up at about 8 a.m. in case anyone needed his services in marriage, hoping to find space for ceremonies at the courthouse, or on the sidewalk. The fellowship will open its doors for ceremonies in the days after the final decision, he said.
Nancy Petty, pastor at Pullen Baptist Memorial Church, hasn’t signed a marriage certificate of any sort in about three years. The church voted unanimously in November 2011 to support that stand in response to the passage of the Amendment One constitutional ban on same-sex marriage. (The church has continued to perform marriage ceremonies.)
Now Petty has a list of couples waiting for their day. She plans to conduct a ceremony at the Wake County Justice Center and open the church for other couples later.
“As soon as we get word, most of us are headed down to the Register of Deeds,” she said.
Charlotte Observer reporter Mike Gordon contributed to this report.