RALEIGH, N.C. — Republican lawmakers can intervene in a pair of challenges to North Carolina‘s now-defunct gay marriage ban, potentially enabling them to appeal the issue to the U.S. Supreme Court, a federal judge ruled Tuesday.
Chief U.S. District Court Judge William Osteen Jr. issued an order granting requests by House Speaker Thom Tillis and Senate leader Phil Berger seeking to intervene in the cases. Osteen’s order follows a separate ruling Friday by U.S. District Court Judge Max O. Cogburn Jr. declaring the ban unconstitutional.
Osteen agreed with Cogburn that a July ruling by the 4th U.S. Circuit Court of Appeals in Virginia required that North Carolina’s ban must be struck down, and he issued a separate judgment declaring the prohibition unconstitutional in the two cases he oversees.
However, Osteen differed on whether the Republican leaders should be allowed to enter the cases.
The state’s Democratic attorney general has concluded any further defense of the prohibition would be futile. Last week, the Supreme Court declined to hear appeals of lower court rulings striking down similar gay marriage bans in Virginia and several other states.
“In reaching this conclusion, this court is not expressing an opinion on the relative merits or demerits of any appeal, only that there is an appeal right that a party with arguable standing and interest has sought to preserve,” wrote Osteen, who was appointed to the bench by President George W. Bush.
The judge ruled in two cases brought by nine same-sex couples seeking the right to marry, the recognition of gay marriages from other states and the ability to adopt their partners’ children. Cogburn ruled Friday in a challenge filed by clergy members seeking to marry gay couples.
Tillis, who is campaigning for the U.S. Senate, has been a vocal supporter of the ban approved by state voters in May 2012. He and Berger have hired California lawyer John C. Eastman, chairman of the conservative National Organization for Marriage, at a fee of $400 an hour.
“Today’s ruling recognizes that the more than 60 percent of North Carolina voters who define marriage as between one man and one woman deserve their day in court, and this decision is an important step to ensure their voice is heard,” Berger said.
Osteen’s decision came as joyful same-sex couples continued to legally wed across the state. Chris Brook, the legal director for the American Civil Liberties Union of North Carolina, predicted any effort by Tillis and Berger would be fruitless.
“The legislature can attempt to pursue an appeal if they so choose; however, that would only unnecessarily expend taxpayer resources,” said Brook, one of the lawyers representing nine same-sex couples who challenged the ban.
The State Health Plan, which provides medical insurance to hundreds of thousands of school teachers and other government employees, announced Monday it will extend coverage to same-sex spouses starting Nov. 1.
Meanwhile, a state magistrate in Pasquotank County could face disciplinary action after refusing to marry two men.
Magistrate Gary Littleton declined on Monday to perform the civil ceremony, citing his religious views that marriage should be between one man and one woman. The couple, who had earlier been issued a valid marriage license, were advised to return later to be married by a different county magistrate.
Under state law, a magistrate who fails to perform his or her legal duties can face removal or suspension. State courts spokeswoman Sharon Gladwell says she is not aware of any other magistrates who have refused to marry same-sex couples.
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