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2 More N.C. Federal Courts Find Gay Marriage Ban Unconstitutional

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By Mark Wilson, Esq. on October 15, 2014 3:19 PM

Within days of each other, two federal district courts in North Carolina have ruled on issues related to the state's ban on same-sex marriage. On October 10, Judge Max O. Cogburn Jr. said that, per the Fourth Circuit's opinion in Bostic v. Schaefer, the matter was settled as far as he was concerned. The state law was plainly unconstitutional:

The issue before this court is neither a political issue nor a moral issue. It is a legal issue and it is clear as a matter of what is now settled law in the Fourth Circuit that North Carolina laws prohibiting same sex marriage, refusing to recognize same sex marriages originating elsewhere, and/or threating [sic] to penalize those who would solemnize such marriages, are unconstitutional.

'This Discussion Is Merely Academic'

Cogburn's order was short and to the point. On October 14, Judge William L. Osteen Jr. also found the state's law unconstitutional, but he had more to say about the issue of intervention.

In the case before Osteen, North Carolina's attorney general declined to continue defending the law in court. So state legislators asked to intervene instead, in much the same way others have had to intervene in other same sex marriage cases when the state's executives decided continuing to appeal same-sex marriage bans was a lost cause.

Much of Osteen's opinion is devoted to discussing the issue of whether state legislators even could intervene. Though he eventually found that they could, he said it really didn't matter.

"[N]otwithstanding some of the ongoing cases on a national level, this discussion is merely academic in this court," Osteen wrote. "The United States Court of Appeals for the Fourth Circuit has issued its ruling in Bostic. As recognized by the district court in General Synod, this district court, sitting in North Carolina and the Fourth Circuit, is bound to apply that law. The parties to this case have the right to expect nothing less, whether they agree with the law or not."

You Can Have Your Appeal, but You're Not Going to Like It

Osteen emphasized that his order was limited to the question of who may file an answer to preserve issues for appeal. He refused to accept any more briefing on the merits of the case. Nevertheless, Osteen's statements that Bostic is the law of the land in North Carolina effectively nullifies the state's same-sex marriage ban -- not that it needed any more nullification, of course.

It's unclear what state legislators think they can accomplish through more appeals; practically every argument against same-sex marriage has been made and shot down. Principles of stare decisis and res judicata suggest that further litigation -- especially in a circuit where the law is effectively settled -- is a waste of time. Acknowledging it was "a very close issue," Osteen allowed the intervenors only to lodge objections, even if those objections would be shot down on appeal.

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