North Carolina has spent over $100,000 in marriage fight

Outside lawyers have billed the state of North Carolina more than $107,000 to appeal federal court rulings that have legalized gay marriage in the state, a cost the attorney general calls a waste and one that even some Republicans question.

The spending comes as the U.S. Supreme Court this week sent what many observers see as its clearest signal yet that it may recognize the constitutionality of all same-sex marriages.

Last October GOP legislative leaders agreed to hire outside counsel to defend the state’s amendment banning same-sex marriage after Democratic Attorney General Roy Cooper refused, saying no arguments were left.

The state hired Charlotte attorney Bob Potter Jr. and California attorney John Eastman, director of the Center for Constitutional Jurisprudence at The Claremont Institute and chairman of the National Organization for Marriage.

Through January, Potter billed the state just over $29,000. The Claremont Institute invoiced $78,200. Officials released the bills after a public records request by the Observer.

Potter offered additional pro bono work. Eastman and Claremont gave a “public interest” discount.

Last year lawmakers moved $300,000 from the attorney general’s litigation budget to a reserve fund for the legislature to use in cases such as the marriage challenge.

“I think we owe it to the voters of the state … to at least defend what the majority of voters said at the polls,” said House Speaker Tim Moore of Kings Mountain, referring to the 2012 constitutional amendment. “I see no sense in stopping.”

Shelly Carver, a spokeswoman for Senate President Pro Tem Phil Berger of Eden, said the expenditure, “would not have been necessary if the attorney general had done his job and defended the law.”

But Cooper’s office rejected the argument.

“Our attorneys defended the North Carolina law … until the United States Supreme Court made it clearly unconstitutional in our federal circuit,” said spokeswoman Noelle Talley. “Although this issue may still be litigated elsewhere, there is absolutely nothing that lawyers in the North Carolina cases can do to make a difference and spending taxpayer money on it is a waste.”

The U.S. Supreme Court is expected to hear arguments this spring in a case that could decide whether same-sex marriage is constitutional. Now a patchwork of court cases and state laws have legalized gay marriage in 37 states.

Alabama became the 37th state this week when the high court refused to stay a federal judge’s order to allow gay marriages to go forward in the state. Justice Clarence Thomas said by their action the court may have tipped its hand in how it will rule in the case. “This acquiescence may well be seen as a signal of the court’s intended resolution of that question,” he wrote in a dissent.

Republican Sen. Jeff Tarte of Cornelius said a final court decision seems near.

“It’s got to be getting close to the point you have to obey the law,” he said. “I don’t know if it’s absolutely settled but it seems to be getting close.”

Charles Jeter, a Huntersville Republican, said North Carolina may be “better served by allowing other states to spend their money.”

“I don’t think us spending $100,000 is going to change the outcome of the Supreme Court’s decision,” he said. “The question becomes, are we participating for political PR purposes or legal strategy?”