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Same-sex marriages may be happening in North Carolina — thanks to the U.S. Supreme Court’s refusal to review the Fourth Circuit’s Bostic decision, allowing such marriages — but one day soon that might change, Lieutenant Gov. Dan Forest suggests in a recent blog post on his website.

In the article (written under his signature but posted by Kami Mueller), the lieutenant governor defends his position that the states, and not the federal government, have the sole constitutional authority to make decisions about marriage.

A majority of justices have said as much, Forest adds, pointing to language from Justice Anthony Kennedy in the high court’s 2013 U.S. v. Windsor decision and agreed to by the court’s liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan):

The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.”

Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. . ..

With those words, Forest offers hope that the high court may yet take up a marriage equality case and reverse the tide of same-sex marriages now sweeping the country.

But Forest apparently overlooked Kennedy’s words immediately preceding the quote above, in which the justice points out as a given that state marriage laws must respect a person’s constitutional rights:

In order to assess the validity of that intervention it is necessary to discuss the extent of the state power and authority over marriage as a matter of history and tradition. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia . . . 
And the lieutenant governor may have also forgotten this:  Only four justices need to agree to take a case. If those on the court’s conservative wing (Chief Justice John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) were intent on taking up the marriage equality issue and perhaps tipping their hats to states’ rights, they could have done so in Bostic.
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(Source: whitehouse.gov)

(Source: whitehouse.gov)

According to a Judiciary Committee spokesperson, both North Carolina senators have submitted “blue slips” for Loretta Copeland Biggs, nominated in September by President Obama to serve as a U.S. District Judge in the state’s Middle District.

That signal of support by home state senators allows the nominee to proceed to a Judiciary Committee hearing and move a step closer to confirmation, which follows from a full floor vote.

If confirmed by the Senate, Biggs will take the seat opened up by Judge James Beaty, who nows serves on senior status.

“We have two highly qualified, outstanding African-American women who have been nominated to be federal judges, and I think it’s time we confirm them and get them on the bench,”  Sen. Kay Hagan said shortly after the Biggs nomination — referring also to Jennifer Prescod May-Parker, a pending nominee for the country’s oldest federal District Court vacancy out in eastern North Carolina.

(Source: whitehouse.gov)

(Source: whitehouse.gov)

Sen. Richard Burr inexplicably continues to withhold a “blue slip” for May-Parker, though — despite his strong statements on the Senate floor disapproving of obstructionism in the judicial nomination process.

Click here for more on the tortured history of North Carolina’s federal judicial vacancies and the lack of diversity of those who have served. 

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060810_1509_Environment1.jpgThere was a collective eye-roll among environmental activists earlier this month when the state Supreme Court announced it was taking over a review of the lawsuit between environmental groups and the state Environmental Management Commission over the handling of Duke Energy coal ash sites — as if the result was preordained.

Perhaps that’s because the conservative majority on the court is perceived as pro-business.

Or perhaps that’s because the high court has, in fact, been less than friendly to those interests.

In a new report examining judicial elections and environmental law — to be published in the Vermont Journal of Environmental Law — Professor John Echeverria dubs the North Carolina Supreme Court a “virtual sinkhole for environmental law.”

Echeverria found that in every case over the last 15 years in which our high court reviewed a major environmental law issue, a majority sided with the anti-environmental protection party in the dispute:

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Read the full report here.

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vote-stickerAs we reported early this morning, the Court of Appeals refused to review Wake County Superior Court Judge Donald Stephen’s order requiring the opening of a voting site on the Appalachian State University campus.

With that refusal, the State Board of Election scheduled a 4 p.m. meeting to vote on a new Watauga County plan that would include a site at ASU. The Board also, though, had filed a request with the Supreme Court for a stay of the Stephens order and a review by the high court.

By 4 p.m., the Board had not heard from the Supreme Court, so went ahead with the meeting and unanimously approved a new plan that included a site at ASU, per the Board’s public information officer Josh Lawson.

Just after adopting that new plan, the Supreme Court granted the stay and agreed to hear the case.

According to Lawson, despite the Court’s ruling, the Board would have to schedule yet another meeting to adopt another plan without the ASU site in response to the high court’s decision.

Lawson said that as of now he knows of no new plans to hold another Board meeting to do that — a decision that would come from Board Chair Josh Howard.

Meaning this: Unless something changes overnight, early voting will take place at a site in the Student Union of the Appalachian State campus (likely the “Price Lake” room).

Follow this post for further developments overnight.

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voter button_SM.jpgThe state Board of Elections has called an emergency meeting for 4 p.m. today to adopt an early voting site at Appalachian State University, after the Court of Appeals late yesterday denied the state’s request for a review of Wake County Superior Court Judge Donald Stephens’ ruling requiring a polling place there.

Here’s an excerpt of the opinion by Judge Stephens:

The majority plan of the Watauga County Board of Elections on its face appears to have as a major purpose the elimination of an early voting site on the ASU campus. Based on this record, the court can conclude no other intent from that board’s decision other than to discourage student voting. A decision based on that intent is a significant infringement of students’ rights to vote and rises to the level of a constitutional violation of the right to vote.

The early voting plan submitted by the majority members of the Watauga County Board of Elections was arbitrary and capricious. All the credible evidence indicates that the sole purpose of that plan was to eliminate an early voting site on campus so as to discourage student voting and, as such, it is unconstitutional.

Here’s the decision by the Court of Appeals:

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And here is the meeting notice from the state Board.

No word yet of a further appeal to the Supreme Court.