The Republican leaders of the North Carolina legislature are not yet ready to let gay couples marry in this state.
Phil Berger, president pro tem of the state Senate, and Thom Tillis, speaker of the state House, filed a motion late Thursday afternoon asking a judge to let them enter the legal fray over the 2012 amendment to the state constitution that defines marriage as a union between a man and a woman.
U.S. District Judge William Osteen gave the legislators until noon Friday to submit their fleshed out legal arguments and denied a request for extra time to review documents.
In an order submitted by Osteen late Thursday, the judge said the legislators had not persuaded him of their need for extra time.
The legislators, Osteen said, “allege that additional time is required to ‘investigate the files and conduct appropriate research in order to adequately prepare the pleading.’ ”
Osteen said he was aware that only a short time had passed since the Supreme Court decision, but “these cases have been pending for a lengthy period of time and the defendants have been clear in their position” that what happened in Virginia could determine what happened in North Carolina.
Charlotte lawyer Robert Potter had informed Osteen on Wednesday of the lawmakers’ plans, and gay-rights advocates spent much of Thursday anxiously waiting the move.
The “motion to intervene” says the lawmakers plan to argue that the Virginia attorney general made too many concessions in legal challenges to that state’s ban on marriage for same-sex couples and that a 4th U.S. Circuit Court of Appeals decision striking down Virginia’s ban should not be binding on what happens in North Carolina.
Though supporters of same-sex marriage questioned the strength of the legislators’ arguments, the request from Berger and Tillis slowed down what many see as the inevitable go-ahead for same-sex marriages in this state.
Berger and Tillis, the Republican candidate for U.S. Senate, have retained 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 in other states.
Eastman, according to Shelly Carver, a spokeswoman for Berger, has agreed to provide the first $10,000 of service pro bono and has reduced his hourly rate by more than a third. To help defray costs, the ActRight Legal Foundation will be accepting and applying private donations toward the effort, she added.
A domino effect
The U.S. Supreme Court announced Monday that 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 nation, opening the possibility for gay marriages to happen immediately in some states and for more bans to be overturned in others.
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 Virginia’s ban and North Carolina’s ban. Any ruling in the Virginia case has sweeping implications for North Carolina, because they are in the same U.S. appeals court 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, 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.
Attorney General Roy Cooper also said this week that he thought the continued defense of the gay marriage ban was “futile.”
Osteen said in his order Thursday that he was considering whether to let Tillis and Berger intervene.
Legal analysts have questioned what new arguments the legislators would bring that would warrant the action.
Brook said legislation approved a year ago allowed legislative leaders to intervene in cases when they did not think the Democratic 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. “They failed to do so.”
In another legal twist Thursday, U.S. District Judge Max Cogburn took over a case filed by clergy in the western part of the state.
Strategy in clergy case
That case, which had been presided over by U.S. District Judge Martin Reidinger, uses a different legal strategy from the challenges in the Greensboro federal court.
The clergy have argued that North Carolina’s amendment banning gay marriage violates their First Amendment right to practice religion freely.
It was unclear what impact the change in judges will have on any immediate action in that case.
Thursday’s uncertainty did not dampen the spirits of gay rights advocates expecting history at any moment.
Some couples and clergy waited outside county offices that issue marriage licenses, with hopes of weddings.
Charlotte Observer reporter Mike Gordon contributed to this report.