North Carolina’s attorney general said Monday that the state would stop defending its same-sex marriage ban against legal challenges, just hours after a federal appeals court ruled that a similar ban in Virginia is unconstitutional.
“Simply put, it is time to stop making arguments we will lose and instead move forward, knowing that the ultimate resolution will likely come from the U.S. Supreme Court,” Atty. Gen. Roy Cooper said.
The ban, known as Amendment One, passed with 61 percent of the vote in 2012. The highly restrictive law defined marriage as the legal union of a man and woman, and also banned civil unions and domestic partnerships for gay and straight couples.
Four pending cases challenge the ban, which is similar to Virginia’s, Cooper said. “I think those plaintiffs will go forward and try to have the district judges rule in their favor, and invalidate that ban,” said Professor Carl Tobias, who teaches constitutional law at the University of Richmond. “Then at least that will be on the record.”
Monday’s ruling did not automatically stay the decision. Tobias says it’s likely clerks in Virginia will seek, and be granted, a stay while they appeal the decision to the U.S. Supreme Court.
If the stay is not granted, however, Tobias says it could leave officials in those states in a “legal limbo” over whether or not they can issue marriage licenses in the meantime.
Chris Brook, legal director for the ACLU of North Carolina, which is representing nine couples in two of the North Carolina cases, called Monday’s decision a victory, and said his clients planned to push forward with their cases on the district court level.
“State marriage bans, such as the one we have here in North Carolina, are living on borrowed time,” Brook said. “It’s a matter of when — not if — they are struck down.”
He said Cooper’s announcement only underscores the recent and continuing string of legal victories for same-sex marriage advocates.
“At a certain point, a good lawyer knows a losing cause when he sees one,” Brook said.