State Politics

Judge blocks legislators from joining magistrates’ legal fight over marriage

Charlotte attorneys Jake Sussman, left front, and Luke Largess speak at a December press conference announcing their legal challenge to the magistrates’ law
Charlotte attorneys Jake Sussman, left front, and Luke Largess speak at a December press conference announcing their legal challenge to the magistrates’ law

A federal judge Thursday blocked legislative leaders from joining a lawsuit over North Carolina’s controversial magistrate’s law, ruling that Attorney General Roy Cooper already is effectively representing the state.

Cooper, the Democratic nominee for governor, has been widely attacked by Republicans for not defending North Carolina’s same-sex marriage ban and House Bill 2, which curtails LGBT rights and blocks transgender people from using the bathrooms of the gender with which they identify.

In February, GOP legislative leaders Phil Berger and Tim Moore cited similar concerns over Cooper’s official performance in asking the courts to let them join a lawsuit over Senate Bill 2. The 2015 law enables magistrates and other officials to opt out of performing marriages if they have a “sincerely held religious objection” to officiating same-sex ceremonies. In those cases, the state would pay to have another magistrate handle the duties.

Republican Gov. Pat McCrory, Cooper’s opponent in the fall, unsuccessfully vetoed the bill when it first passed.

A Charlotte team of lawyers representing three gay couples sued the state in December, arguing that SB2 is unconstitutional, makes it possible for government officials to ignore their official duties, and seeks to circumvent court rulings in 2015 that made same-sex marriage legal nationwide.

Cooper’s office is defending SB2 in court. Prior to the law’s passage, Cooper said he would veto it if he were governor.

“There are laws in place that protect religious liberties,” Cooper said at the time. “We don't need these laws that hurt people and our economy.” He also said magistrates “should fulfill the job that they were hired to do.”

Berger, president of the state Senate, and Moore, speaker of the house, argued in a February court filing that Cooper’s opinion of the law make it impossible for him to defend it. Private attorneys hired by the pair – court documents list six lawyers representing the legislators in the case – have asked that the SB2 lawsuit be thrown out. So has Cooper’s staff.

In 2015, Cooper announced he would stop defending the state’s ban on same-sex marriage after a court ruling appeared to find that it and similar marriage laws were unconstitutional. He also refused to defend HB2, which has made the state the focus of a nationwide debate over LGBT rights. In both cases, Republicans used public money to hire private attorneys.

Cooper says he and his staff have effectively defended laws with which he didn’t agree, and that hiring private lawyers in the magistrates’ case when state attorneys already are doing the work wastes taxpayer money.

U.S. Magistrate Judge Dennis Howell of Asheville, in essence, agreed.

He denied the request of the General Assembly leaders and several magistrates who have resigned their jobs rather than perform same-sex marriage to intervene in the SB2 case.

Howell’s reasoning: It’s Cooper’s job, not the General Assembly’s, to represent the state in court actions. Counter to Republicans’ expressed criticism, Cooper’s office is “aggressively defending” SB2, the judge said.

The legislators “have failed to demonstrate that their interests are not adequately represented and have not demonstrated nonfeasance on the part of the attorney general or the N.C. Department of Justice,” Howell wrote. However, he said he would revisit the issue if at some point “the state no longer intends to defend the constitutionality of Senate Bill 2.”

Charlotte attorney Luke Largess, who helped bring the suit, said Howell’s ruling was “a reasonable one” that will keep the case moving toward a trial.

U.S. District Judge Max Cogburn will hear arguments on Aug. 8 in Asheville on whether the case should be dismissed.

Michael Gordon: 704-358-5095, @MikeGordonOBS