Greensboro judge strikes down amendment, but allows GOP to intervene in marriage case

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A federal judge in Greensboro, N.C., ruled Tuesday afternoon that the North Carolina’s anti-LGBT marriage amendment is unconstitutional, but will also allow the state’s top Republican legislative leaders to intervene in their continuing effort to defend the constitutional ban.

U.S. District Court Judge William Osteen issued his order Tuesday, following fellow federal Judge Max Cogbburn’s ruling on Friday overturning the amendment and opening legal marriage to same-gender couples across the state.

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read the orders

Osteen’s Tuesday orders (PDF):

Allowing GOP intervention

Striking down amendment

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In his order, Osteen says GOP leaders have an interest in the case and a right to intervene.

“As authorized representatives of the legislature, Movants’ desire to defend the constitutionality of legislation passed by the legislature is a protectable interest in the subject matter of this litigation,” Osteen wrote.

But, the judge pushed back on GOP assertions that North Carolina Attorney General Roy Cooper had failed to properly defend the state.

“This court disagrees with that implication and is not persuaded that the Attorney General has inadequately represented Movants’ interests thus far,” Osteen wrote. “First, it is important to note here that the North Carolina Attorney General’s concession came only after Bostic became final. Prior to that time, the North Carolina Attorney General defended the relevant laws.”

Republican state House Speaker Thom Tillis and Senate President Pro Tem Phil Berger have vowed to continue fighting to uphold the amendment and have hired attorneys with close ties to a national anti-LGBT organization known for its opposition to LGBT marriage equality.

Tillis and Berger will be able to appeal to the Fourth U.S. Circuit Court of Appeals as parties to the two ACLU of North Carolina cases.

The ACLU praised the second ruling overturning the amendment in a statement Tuesday evening.

“Judge Osteen’s ruling is the second in five days to declare North Carolina’s ban on marriage for same-sex couples to be unconstitutional,” said Chris Brook, Legal Director for the ACLU of North Carolina. “This second ruling further emphasizes that North Carolina’s now-defunct marriage ban was discriminatory and denied same-sex couples their constitutional rights to due process and equal protection under the law.”

But, Brook also pushed back against any attempt by the GOP to appeal the case.

“The legislature can attempt to pursue an appeal if they so choose; however, that would only unnecessarily expend taxpayer resources,” Brook said. “North Carolinians can rest assured: the freedom to marry is here to stay.”

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Equality North Carolina, the statewide LGBT advocacy group, also issued a statement, reassuring LGBT couples and others the amendment was gone for good.

“We want to make it perfectly clear to tens of thousands of loving, same-gender families as well as supporters of equality statewide, that today’s decision by U.S. District Court Judge William Osteen is in direct accord with Friday’s ruling that found Amendment One unconstitutional and reaffirms that the freedom to marry is the law of the land in North Carolina,” executive director Chris Sgro said in a statement.

Like the ACLU, Equality NC, too, pushed back against the GOP’s continued efforts.

“Osteen’s decision to allow the state’s Republican leaders Thom Tillis and Phil Berger to appeal the ruling sheds harsh light on Tillis and Berger’s willingness to waste precious taxpayer dollars in a futile effort to defend an unconstitutional law,” Sgro said.

“Make no mistake, Amendment One is dead. We know it. Our courts know it. Our Attorney General knows it. And our Governor knows it. And no amount of spending our money to play politics with North Carolina families will resurrect it.”

One of Tillis’ and Berger’s attorneys last week had hoped to make oral arguments in front of Osteen — a request which was denied — but the same attorney said they may be willing to take the case again to the Fourth Circuit Court, which had already struck down Virginia’s anti-LGBT marriage ban.

“We will not be making those concessions, and we expect a different outcome,” Eastman told The Charlotte Observer. “If not in the 4th Circuit Court of Appeals, then we will ask the Supreme Court to get involved.”

The ruling on Virginia’s marriage ban became binding in North Carolina last Monday, when the U.S. Supreme Court declined to hear an appeal in that case and several similar cases from other states.

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Posted by Matt Comer

Matt Comer previously served as editor from October 2007 through August 2015 and as a staff writer afterward in 2016.