As reported, and just in time for tonight’s U.S. Senate debate between state speaker Thom Tillis and U.S. Senator Kay Hagan, the speaker and his counterpart in the state senate President Phil Berger have moved to intervene in two of the lawsuits challenging North Carolina’s ban on same-sex marriage.

The brief filed in support of their motion is here.


With Attorney General Roy Cooper refusing to defend Amendment One in the courts, Tillis and Berger have formally filed to intervene, retaining John Eastman of the National Organization for Marriage as primary counsel and meeting a 5 p.m. deadline for action set by a federal judge.

Qnotes reports:

Republican leaders in North Carolina submitted their motion to intervene in two same-sex marriage cases shortly after 4 p.m., meeting a Greensboro, N.C., federal judge’s 5 p.m. deadline.

U.S. District Court Judge WIlliam Osteen released his order shortly after 3 p.m., dismissing all defendants with the exception of Attorney General Roy Cooper, who has already said he will no longer defend the anti-LGBT constitutional amendment passed by voters in May 2012.


In a motion filed late Thursday evening, Tillis’ and Berger’s attorneys asked Osteen to give them eight additional days — up to Oct. 17 — to submit arguments against legalizing same-sex marriage.

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The judge in two of the same-sex marriage cases pending in North Carolina  issued an order this afternoon requiring the parties to file reports within 10 days, detailing how the court should proceed in light of the U.S. Supreme Court’s refusal to review a Fourth Circuit decision rejecting Virginia’s same-sex marriage ban as unconstitutional.

Saying that it appeared that the couples challenging the state’s marriage ban were entitled to a preliminary injunction blocking the enforcement of that ban, U.S. District Judge William  L. Osteen Jr. asked the parties in Fisher-Borne v. Smith and Gerber v. Cooper to provide him with additional information needed to bring the cases to a close:

In light of the foregoing, this court orders that the parties file a status report, without argument, detailing the following matters: (1) whether the parties agree with this court’s suggestion as to the effect of [the Fourth Circuit decision] on this case as set out herein; (2) whether any discovery is required as to either of these cases prior to proceeding to summary judgment; (3) what issues remain for resolution by this court in each of these cases with respect to the challenged adoption laws; and (4) what the parties suggest in terms of additional briefing on any remaining issues.

Two other same-sex marriage cases are pending in federal court here:

General Synod of the United Church of Christ v. Cooper, filed in federal court in Charlotte on behalf of same-sex couples and four national religious denominations – the United Church of Christ, the Alliance of Baptists, the Association of Welcoming and Affirming Baptists and the Central Conference of American Rabbis – in addition to Episcopalian, Jewish and Baptist clergy from across North Carolina. The same-sex couples are seeking the freedom to marry and the clergy are seeking the religious freedom to perform wedding ceremonies for such couples.

McCrory v. Cooper, filed in March in federal court in Asheville by two women who’ve been together for more than 25 years and were legally married in New York in 2013.

No court action has occurred in those cases yet following today’s Supreme Court rulings.

Tomorrow morning, representatives from the American Civil Liberties Union of North Carolina, Equality North Carolina, and plaintiffs challenging North Carolina’s marriage ban will speak at a press conference in Raleigh about what the U.S. Supreme Court decision means for same-sex couples seeking the freedom to marry in North Carolina.

The press conference will be held at 10 a.m. at the LGBT Center of Raleigh, 324 S Harrington St, Raleigh, NC 27603




Gay marriage 3As reported, the ACLU will immediately file papers asking the federal judge handling same-sex marriage cases here to invalidate the state’s ban and allow marriages to go forward.

For quick context on the the Supreme Court’s inaction today and what it means in North Carolina and elsewhere, see this VOX explainer.

And for more detail, read this post by Lyle Denniston at SCOTUSblog on how the ruling will unravel in affected states and what’s on the horizon that might push the Supreme Court to take a marriage equality case and rule on the issue.

As they say on the live blog, here’s Lyle:

With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks.  If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.

In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court.   Almost no one had expected that to happen.

It may take a few weeks for the Court’s action to take effect in real-world terms, in the geographic areas where federal appeals courts have struck down bans in five states — the decisions that the Justices have now left intact.  Because those appeals court rulings are binding on all federal courts in their regions, those decisions almost certainly dictate the outcome in six more states.


Mike Meno of the ACLU of North Carolina issued the following statement in response to the announcement this morning by the U.S. Supreme Court that would not take up the appeals of various circuit court decisions upholding marriage equality:

U.S. Supreme Court today announced it would not review appeals court rulings in seven states, including one from Virginia by the Fourth Circuit Court of Appeals, striking down state bans on marriage for same-sex couples. The decision means that all of those rulings stand, and the states in their jurisdiction must comply with the law and recognize the freedom to marry for same-sex couples.

North Carolina is one of five states in the Fourth Circuit. The Supreme Court’s announcement means that all states in the Fourth Circuit, including North Carolina, are bound by the Fourth Circuit’s ruling that struck down Virginia’s ban on marriage for same-sex couples.

“The Supreme Court’s decision means that the freedom to marry for same-sex couples must be recognized here in North Carolina without delay,” said Chris Brook, legal director of the American Civil Liberties Union (ACLU) of North Carolina. “We are asking the district court here in North Carolina to immediately issue a ruling striking down North Carolina’s unconstitutional and discriminatory ban on marriage for same-sex couples. Every day that gay and lesbian couples in North Carolina are denied the ability to marry the person they love places their families and children in legal and financial jeopardy. The time has come to end this unfair treatment once and for all and to let our American values of freedom and equality apply to all couples.”

The ACLU and ACLU of North Carolina Legal Foundation have filed two federal lawsuits challenging North Carolina’s ban on marriage for same-sex couples, both in the U.S. District Court for the Middle District of North Carolina in Greensboro. The first, Fisher-Borne, et al., v. Smith, was filed in July 2013 as an amended complaint to a 2012 lawsuit challenging North Carolina’s ban on second parent adoptions on behalf of six families across the state headed by same-sex couples. On April 9, 2014, the ACLU filed a second federal lawsuit, Gerber and Berlin, et al., v. Cooper, on behalf of three married, same-sex couples seeking state recognition of their marriages. Because of the serious medical condition of one member of each couple, the Gerber plaintiffs are asking the court to take swift action.

The ACLU has asked the judge in those cases to quickly overturn North Carolina’s marriage ban in light of a July ruling from the U.S. Court of Appeals for the Fourth Circuit that found Virginia’s similar marriage ban unconstitutional.

To date, the ACLU has legal challenges to marriage bans pending in 13 states.