By Michael Gordon,
Originally published by The Charlotte Observer

tillisbergerThe attorney for North Carolina’s top two legislative leaders says they have decided to appeal a judge’s decision this week that legalized same-sex marriage in the state.

U.S. District Judge William Osteen of Greensboro ruled on Tuesday that state laws limiting marriage to a man and a woman are unconstitutional. Osteen, a judicial appointee of President George W. Bush, said the 4th Circuit Court of Appeals decision in July to strike down a similar law in Virginia established legal precedent in North Carolina, too. Both states are within the 4th Circuit’s jurisdiction.

Osteen – and U.S. District Judge Max Cogburn before him – issued their opinions within days of a U.S. Supreme Court decision not to review same-sex marriage rulings affecting Virginia and four other states.

House Speaker Thom Tillis and Senate President Phil Berger, two powerful GOP lawmakers who helped put the constitutional marriage amendment before state voters two years ago, tried at the last minute to defend the state’s marriage laws before both judges.

Cogburn, appointed to the bench by President Barack Obama, refused. Osteen, however, said the two Republican lawmakers could appeal his decision that the appeals court’s ruling in Virginia is binding for North Carolina.

At the time of Osteen’s ruling, lawyer John Eastman said his clients had not yet decided whether to go forward with an appeal.

On Thursday, Eastman, a California law professor and conservative legal strategist, said his clients would do just that, and that they would file their appeal to the 4th Circuit within the required 30-day window.

Shelly Carver, a spokeswoman for Berger, confirmed that the legal fight will press on, and that additional details were being finalized by the legislators’ attorneys, who also include Robert Potter of Charlotte.

Lawyers for the groups that successfully challenged North Carolina’s same-sex marriage ban said any appeal amounts to a costly exercise in futility. (Republican Gov. Pat McCrory has already pledged to abide by the courts’ gay-marriage rulings.)

“The reality is the courts have already spoken on this issue, and the freedom to marry is here to stay,” said Chris Brook, legal director for the American Civil Liberties Union of North Carolina. “These appeals are completely frivolous and will do nothing but waste taxpayer dollars.”

Jake Sussman of Charlotte, lead attorney in the case that led to Cogburn’s ruling, said the North Carolina judges joined 25 counterparts from around the country in finding same-sex marriage bans unconstitutional.

Many legal experts say an appeal faces extremely long odds in the 4th Circuit, given the similarities between the Virginia and North Carolina laws.

Tillis is in a neck-and-neck U.S. Senate race against Democratic incumbent Sen. Kay Hagan, and he has already made his defense of the state’s marriage laws a campaign issue. The question becomes whether the appeal will be filed before or after the Nov. 4 election.

Carl Tobias, a University of Richmond law professor who has followed the North Carolina legal fight, said Tillis and Berger appear to have slowed their defense, and he wonders why Eastman has not sought an immediate stay of Osteen’s order from the appeals court.

“It is tempting to suggest that the intervention was all about politics, but who knows?” Tobias said. “The risk of pushing too fast is they will look foolish when the 4th Circuit says no.”

The Charlotte Observer

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6 replies on “Tillis and Berger will appeal N.C. marriage ruling”

  1. The idea that Burger and Tillis are spending more money on this issue is outrageous. They have spent more than $7M to fight on an issue that has been decided by the courts. The money could be used to help education and the uninsured.

  2. Now, Jenna, they couldn’t possibly be playing politics, could they?

    Yes, they most decidedly are. I agree, they’re wasting NC citizens’ tax money to serve their own political agendas. After all, the money is not coming out of their pockets!

  3. I have known Thom TIllis since the mid-80’s. Take it from one who knows, Thom is throwing every gay person In North Carolina under the bus just to get votes from the Right-wing. In conversations I have had with him since 2011 he has said he was opposed to Amendment 1. Then we he allowed it out of committee, he said he doubted it would pass. The day before Amendment 1 passed, he told me he was going to vote against it. Please, please wake up and demand answers from him. He has blocked his phone. He knows that if I open up about his sexual “indiscretions” in the 80’s his hypocrisy will be fully exposed. Please wake up. Thom Tillis is a dangerous man. He has no plans to appeal until after the election and then, mark my word, he will decide not to. Thom will turn his back on friends, gay people, black people..anyone who stands in the way of him getting elected. Demand answers from him. Do not be used like this.!

    1. Les,Les,Les,
      Thom Tillis is a great man,and if you really knew him,you would know this.
      It seems you are grabbing at straws.
      He is not throwing anyone under the bus, he is sticking up for his beliefs, which is a marriage is between one man and one woman,always has been always will be, in the sight of God.
      Lets take three islands,
      Lets put all the heterosexuals on one island,
      and all the homosexual males on another one,
      and lastly all the lesbian women on the last island,you see what I am getting at, the heterosexuals will thrive and multiply,while the other two islands will,well just die out.
      It is against Nature.
      Please think this over,and please remember God still loves you,and all you have to do is repent of your sins,nobodys perfect,everyone was born into sin,you have to fight it.
      Good luck to you,God Bless

      1. Nah, Three Islands theory doesn’t hold water “pun intended” Hetro couples will still give birth to Homosexual children, thus repopulating the other two islands indefinitely

  4. Three Islands,
    You don’t seem to understand ( or choose not to). I have known Thom Tillis for over 25 years. We even shared an apartment for over a year. Why don’t you call him and ask if he knows me? How’s that? As for the rest of your sermonette just save it. I attend Church for that. I post on comment sections about whatever is germane to the article. This was about Thom Tillis. As for calling me to repentance, I think maybe you’re too caught in your own self-righteousness to be going around passing judgement on me or anyone else. Oh , and Good luck to you too. And may God bless you as well by softening your heart.

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