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North Carolina attorney general announces support for marriage equality, will continue to defend state ban

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North Carolina state sealSome interesting news out of North Carolina, where Attorney General Roy Cooper, a Democrat, announced yesterday that he supports marriage equality but that he will continue to defend North Carolina’s marriage equality ban.

As the AP noted in its report on Cooper’s position shift, the attorney general is both a defendant and the state’s lead attorney in a lawsuit filed after the Supreme Court’s invalidation of Section 3 of DOMA arguing that North Carolina, which bans marriage equality both in statute and in the state constitution, unconstitutionally infringes upon same-sex couples’ rights by refusing to allow them to marry.  Cooper is planning a gubernatorial run for 2016.

Not surprisingly,  conservative groups in the state are none too happy about Cooper’s move, according to the AP:

His announcement worries social conservative groups that supported the amendment’s passage but aren’t sure that Cooper will robustly defend the state in court. They are particularly unhappy with Cooper for agreeing to speak at next month’s annual fundraiser for the gay-rights organization Equality North Carolina. While not a plaintiff in the lawsuit, Equality NC lobbies for expanding rights for gays and lesbians.

Cooper’s planned Nov. 9 speech draws “into serious question the intent of the attorney general with respect to the lawsuit,” North Carolina Family Policy Council executive director John Rustin said Monday.

Republican leaders in the state, such as Gov. Pat McCrory, are eyeing Cooper warily and giving themselves a way out should he switch his mind on defending the state’s marriage laws: the General Assembly has passed a law authorizing its lawyers to defend its laws in court if need be.

After the AP’s report yesterday, Bumcombe County Register of Deeds Drew Reisinger issued a press release announcing he would seek permission to grant marriage licenses to same-sex couples:

Buncombe County Register of Deeds Drew Reisinger will be the first government official in the South to seek approval to grant same-sex marriage licenses since the U.S. Supreme Court decision striking down the Defense of Marriage Act.

Reisinger will accept and hold same-sex marriage applications and push the question of equal marriage rights to the state’s chief legal adviser, Attorney General Roy Cooper.

“I will let each couple know that it is my hope to grant them a license, but I need to seek the North Carolina Attorney General’s approval,” Reisinger said. “I have concerns about whether we are violating people’s civil rights based on this summer’s Supreme Court decision.

BuzzFeed reported that Reisinger’s requests are likely to be denied, according to a statement the site received from Noelle Talley, Attorney General Cooper’s spokeswoman:

“The State Constitution says that these marriage licenses cannot be issued and this is the law unless the Constitution is changed or the court says otherwise. This very issue is the subject of pending litigation against the State of North Carolina.”

What’s interesting here is that Cooper’s move provides a model moving forward for state officials to express their personal support for equal rights of same-sex couples while continuing to defend state marriage equality bans in a way that keeps litigation alive and adversarial.  That may be frustrating for LGBT advocates, but it could be a necessary step in avoiding another decision like the one issued by the U.S. Supreme Court in the Proposition 8 case, which essentially held that the constitutional merits of California’s marriage equality ban couldn’t be considered since state officials hadn’t defended the law in court.

1 Comment

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