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Video: Attorney general won't defend N.C. gay marriage ban
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Video: Attorney general won't defend N.C. gay marriage ban

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Updated 11:04 p.m.

N.C. Attorney General Roy Cooper said Monday that a constitutional amendment state voters approved in 2012 is not defensible and that he will not oppose legal challenges to it.

Cooper made the announcement during a press conference in Raleigh shortly after the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., issued a ruling striking down Virginia’s gay marriage ban.

The 4th Circuit’s territory covers five states, including North Carolina.

What that means, Cooper told reporters, is that North Carolina’s constitutional amendment banning same-sex marriage will “almost surely be overturned.”

“Simply put, it’s 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,” he said during the press conference.

The Court of Appeals’ ruling won’t take effect for 21 days, during which time a stay could be issued, allowing for further review.

Locally, Ellen “Lennie” Gerber of High Point said Monday that she is just hoping that her marriage to Pearl Berlin will be recognized in North Carolina “while she’s still here with us.”

Berlin is 89 and in “frail” condition, Gerber said.

Gerber and Pearl, who were married in Maine, where same-sex marriages are legal, are among three couples who filed a lawsuit earlier this year challenging North Carolina’s same-sex marriage ban.

“This ruling, it’s just one more step forward for the country,” Gerber said.

Cooper said that while same-sex marriages are not yet legally recognized in this state, his office will now acknowledge “marriage is a fundamental right and that the judges are bound by this 4th Circuit decision.”

“Our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable ... and all the federal courts have rejected these arguments each and every time,” he said. “So it’s time for the state of North Carolina to stop making them.”

However, some people see that stance as a dereliction of duty,

“North Carolinians voted to put the marriage amendment in our constitution, expect our AG to uphold his oath by defending it,” state Senate leader Phil Berger Sr. tweeted.

Dave Kistler, president of the North Carolina Pastors Network and an opponent of same-sex marriage, said Cooper’s stance is “of great concern.”

“What we hope our attorney general would do is defend the law of the state of North Carolina, which is that marriage is between one man and one woman,” Kistler said. “Amendment One was passed overwhelmingly by the citizens of North Carolina. He needs to defend that as our state attorney general.”

Staff Writer Joe Gamm contributed to this report.


Updated 7:41 p.m.

RICHMOND, Va. (AP) — Virginia's same-sex marriage ban was ruled unconstitutional on Monday in the first such decision by a federal appellate court in the South.

"We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws," Judge Henry F. Floyd wrote.

The 2-1 ruling applies throughout the circuit that also includes West Virginia, Maryland, and the Carolinas, where the attorneys general split Monday on what they'll do next.

Virginians voted 57 percent to 43 percent in 2006 to amend their constitution to ban gay marriage. Virginia laws prohibit recognizing same-sex marriages performed in other states. Floyd said such measures "impermissibly infringe on its citizens' fundamental right to marry."

The 4th U.S. Circuit Court of Appeals in Richmond is the second federal appellate court to overturn gay marriage bans, and the first to affect the South, a region where the rising tide of rulings favoring marriage equality is testing concepts of states' rights that have long held sway.

Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. Most are still under appeal. More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.

The U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.

The 6th Circuit in Cincinnati will hear arguments on Aug. 6 for Ohio, Michigan, Kentucky and Tennessee. The 7th Circuit in Chicago is set for arguments on Aug. 26, and the 9th Circuit in San Francisco for Sept. 8. The 10th Circuit in Denver overturned Utah's ban in June.

"Marriage is one of the most fundamental rights — if not the most fundamental right — of all Americans," said plaintiffs' attorney David Boies. "This court has affirmed that our plaintiffs — and all gay and lesbian Virginians — no longer have to live as second-class citizens who are harmed and demeaned every day."

Defenders of gay marriage bans are likely to ask for a stay pending their next appeal; otherwise, licenses could be issued to Virginia's same-sex couples in 21 days. And once it becomes final, the decision will apply to the entire circuit, American Civil Liberties Union lawyer James Esseks said.

North Carolina's top lawman, Roy Cooper, quickly announced that he'll stop defending his state's ban, saying it is "time to stop making arguments we will lose." But a spokesman said South Carolina's attorney general, Alan Wilson, sees no need to change course.

Maryland already allows same-sex marriages. West Virginia Attorney General Patrick Morrisey, for his part, said he's reviewing the decision and won't comment until it's final.

The ruling came as Colorado's attorney general, John Suthers, asked his state Supreme Court Monday to stop county clerks from issuing licenses to gay and lesbian couples. But North Carolina's Cooper said his fellow attorneys general should give up the fight.

"In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable," Cooper said in a statement. "All the federal courts have rejected these arguments each and every time. So it's time for the State of North Carolina to stop making them."

The decision by U.S. District Judge Arenda Wright Allen that Virginia's ban violates the U.S. Constitution's equal protection and due process guarantees was challenged by two circuit court clerks whose duties include issuing marriage licenses. They were supported by the right-wing legal group Alliance Defending Freedom, based in Scottsdale, Arizona.

The group said it may ask for a full circuit rehearing, or appeal directly to the Supreme Court.

"Every child deserves a mom and a dad, and the people of Virginia confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union," ADF Senior Counsel Byron Babione said.

Carl Tobias, a law professor who watches the 4th Circuit closely, said he expects a direct Supreme Court appeal, since there is little reason to expect a different outcome from the full circuit, given its current makeup.

The circuit long had a reputation as one of the nation's most conservative courts, but that has changed in the last five years.

Most of the 14 active judges are Democratic appointees, including five named by President Barack Obama. Floyd was initially appointed as a federal judge in South Carolina by George W. Bush, and then nominated for the appellate court by Obama. Roger Gregory, who joined Floyd in the majority, was a recess appointment of Bill Clinton, re-nominated by Bush in 2001. Paul V. Niemayer, who wrote the dissent, was appointed by George H. W. Bush.

The Virginia lawsuit was filed by Timothy Bostic and Tony London of Norfolk, who were denied a marriage license, and Carol Schall and Mary Townley of Chesterfield County. The women were married in California and wanted their marriage recognized the state where they are raising a 16-year-old daughter.

"I am proud that the Commonwealth of Virginia is leading on one of the most important civil rights issues of our day," Virginia Attorney General Mark Herring said. "We are fighting for the right of loving, committed couples to enter the bonds of marriage."


Updated 5:46 p.m.

RALEIGH — North Carolina's attorney general said Monday his office will no longer defend the state's voter-approved ban on same sex marriage in court after a federal appeals court ruled a similar prohibition in neighboring Virginia unconstitutional.

At a news conference little more than two hours after the 4th U.S. Circuit Court of Appeals ruling was announced in Richmond, Virginia, Attorney General Roy Cooper said the ruling made it highly likely North Carolina's ban will be overturned. North Carolina is part of the 4th Circuit.

Cooper, a Democrat, said further opposition to the four federal lawsuits challenging his state's constitutional ban on same-sex marriage would be "futile."

"Our attorneys have vigorously defended North Carolina marriage law, which is their job," Cooper said. "But today we know our law almost surely will be overturned as well. 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."

Cooper had previously stated his personal opposition to the marriage ban, but said it was his duty as attorney general to defend the state law approved by voters in 2012.

He said his decision Monday doesn't mean same-sex marriages in North Carolina can begin immediately. That would take a judge's ruling. But since the 4th Circuit includes North Carolina, he said any federal judge in the state would be bound by the ruling in Virginia.

"Our office, along with other attorneys general and state attorneys across the country, have made about every legal argument imaginable," Cooper said. "Since the U.S. Supreme Court ruled in the Windsor case, all the federal courts have rejected these arguments each and every time. So it's time for the State of North Carolina to stop making them."


Updated 5:33

N.C. Attorney General Roy Cooper said state prosecutors will drop opposition to challenges to state's same-sex marriage ban.


Updated 4:30 p.m.

N.C. Attorney General Roy Cooper told reporters this afternoon that North Carolina’s constitutional amendment banning same sex marriage will “almost surely be overturned.”

He made the announcement following the U.S. Fourth Circuit Court of Appeals’ ruling striking down Virginia’s prohibition on gay marriage today.

“Simply put, it’s 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,” he said during a press conference.


Updated 3:25 p.m

RALEIGH N.C. Attorney General Roy Cooper will hold a news conference at 4 p.m. to discuss the 4th U.S. Circuit Court of Appeals ruling on Virginia's same-sex marriage ban.

Cooper has been named as a defendant in a lawsuit filed in North Carolina challenging the North Carolina ban.

Because North Carolina, South Carolina and West Virginia are in the 4th Circuit, they are governed by  the ruling. However, the court issued a stay on the ruling, which means those states won't have to abide by it until after it has been heard by the U.S. Supreme Court.


Updated 3:15 p.m.

GREENSBORO — A federal appeals court’s decision to strike Virginia’s same-sex marriage ban may not have an immediate effect on North Carolina Law, said Guilford County Register of Deeds Jeff Thigpen.

“It looks like the decision has been stayed, which means that it doesn’t look like citizens in North Carolina will be immediately able to marry,” Thigpen said. “It moves (a gay marriage decision) one step closer to the U.S. Supreme Court.”

A three-judge panel of the 4th U.S. Circuit Court of Appeals, in Richmond, today ruled that Virginia’s gay marriage ban violates the U.S. Constitution.

Three same-sex couples filed lawsuits in April seeking recognition of their out-of-state marriages.

Two of the suits named Thigpen, in his official capacity as register of deeds, as a defendant, though he personally has expressed support for same-sex marriage. Thigpen declined to issue a marriage license to a gay couple last year, but said he looked forward to the day when he would be able to issue the license.

“As I look forward, I will say what I said in the fall — I look forward to the day I’ll be able to give marriage licenses and be able to ensure the freedom to marry to all citizens.

“I’m very encouraged that this is one step toward that end.”


Updated 2:29 p.m.

RICHMOND, Va. — A federal appeals court ruled Monday that Virginia's same-sex marriage ban is unconstitutional, the latest in a string of decisions overturning bans across the country.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond ruled that state constitutional and statutory provisions barring gay marriage and denying recognition of such unions performed in other states violate the U.S. Constitution. The Virginia gay marriage case is one of several that could go to the U.S. Supreme Court.

It was not immediately clear if or when the state would need to begin issuing marriage licenses to same-sex couples.

Virginia's same-sex marriage bans "impermissibly infringe on its citizens' fundamental right to marry," Judge Henry F. Floyd wrote in the court's opinion.

In February, U.S. District Judge Arenda Wright Allen ruled that Virginia's same-sex marriage ban violates the U.S. Constitution's equal protection and due process guarantees. Lawyers for two circuit court clerks whose duties include issuing marriage licenses appealed. Attorney General Mark Herring, representing a state official also named as a defendant, sided with the plaintiffs.

"Marriage is one of the most fundamental rights — if not the most fundamental right — of all Americans," David Boies, an attorney for the plaintiffs, said in a statement. "This court has affirmed that our plaintiffs — and all gay and lesbian Virginians — no longer have to live as second-class citizens who are harmed and demeaned every day."

Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court last year struck down a key part of the federal Defense of Marriage Act. Those rulings remain in various stages of appeal.

More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.

The Virginia lawsuit was filed by Timothy Bostic and Tony London of Norfolk, who were denied a marriage license, and Carol Schall and Mary Townley of Chesterfield County. The women were married in California and wanted their marriage recognized in Virginia, where they are raising a 16-year-old daughter.

Two other same-sex couples, Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester, filed a similar lawsuit in Harrisonburg and were allowed to intervene in the case before the appeals court.

In 2006, Virginians voted 57 percent to 43 percent to approve the constitutional amendment banning gay marriage. Virginia laws also prohibit recognition of same-sex marriages performed in other states.


Posted 1:37 p.m.

RICHMOND, Va. — A federal appeals court has struck down Virginia's same-sex marriage ban.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond ruled Monday that state constitutional and statutory provisions barring gay marriage and denying recognition of such unions performed in other states violate the U.S. Constitution. The Virginia gay marriage case is one of several that could go to the U.S. Supreme Court.

In February, U.S. District Judge Arenda Wright Allen ruled that Virginia's same-sex marriage ban violates equal protection and due process guarantees. Lawyers for two circuit court clerks whose duties include issuing marriage licenses appealed.

The lawsuit was filed by two Norfolk men who were denied a marriage license and two Chesterfield County women whose marriage in California is not recognized by Virginia.

Contact Robert C. Lopez at (336) 691-5091, and follow @rclopezNR on Twitter.

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GREENSBORO - The ACLU kicked off a legal challenge to North Carolina's gay marriage amendment Tuesday, announcing it will fight the ban through a case already pending here in federal court.

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