Virginia's Anti-Gay Marriage Law Struck Down. Is NC Next?

Last night Federal Judge Arenda L. Wright Allen of United States District Court for the Eastern District of Virginia struck down Virginia's constitutional amendment banning gay marriage and immediately stayed her own decision pending an appeal to the 4th Circuit Court of Appeals.

Virginia adopted its discriminatory constitutional amendment via referendum in 2006. In addition to overturning that law, Judge Allen also ruled that Virginia must recognize same-sex marriages performed in other states.

The challenge to Virginia’s ban was argued by the same bipartisan team of legal stars, Theodore B. Olson and David Boies, that successfully contested California’s ban in 2010. The new attorney general of Virginia, Mark R. Herring, announced that his office considered the marriage ban unconstitutional and assisted with the legal challenge, reversing the official position of the last Virginia Attorney General, a conservative Republican who was defeated in November.

Legal scholars are already lauding Allen's decision for its sweeping scope and lofty language. In summing up the decision, she wrote, “We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.”

What's Pending in North Carolina

North Carolina passed its Amendment One banning same-sex marriage in May 2012. In June of that year, Fisher-Borne v. Smith was filed in Greensboro in the U.S. District Court for the Middle District of North Carolina challenging the state’s ban on second parent adoption, a process by which one partner in an unmarried gay or straight couple adopts the other partner’s biological or adoptive child. Fisher-Borne v. Smith was subsequently amended in 2013 to allow a claim against the constitutionality of NC's same-sex marriage ban. Attorney General Roy Cooper could have objected to the amendment of the original suit, but he did not.

A.G. Cooper has said publicly that he thinks NC's Amendment One was a bad idea, but he's also said that he would vigorously defend NC's legal position in Fisher-Borne v. Smith. Cooper's public stand in favor of "marriage equality" led President Pro Tempore of the N.C. Senate Phil Berger (R-Rockingham) and Speaker of the N.C. House Thom Tillis (R-Mecklenburg) to hire outside legal counsel to advise them on how the state is handling its defense in Fisher-Borne v. Smith. Legislation passed by the General Assembly last year gives these legislative leaders standing to jointly intervene in legal actions to defend state statutes and constitutional provisions that are being challenged in court. In December, Senator Berger and Speaker Tillis stated, “While the General Assembly is not formally intervening in the lawsuit at this time, the outside counsel will provide backup review of the attorney general’s work to ensure he is fulfilling his duty to vigorously defend the law.”

Surely by now panic has set in among the Berger/Tillis crowd as they watch their radical conservative agenda for North Carolina dismantled in more than one judicial venue. Judge Allen's decision in the Virginia case ought to sufficiently chill their spines.

No word on when the U.S. District Court for the Middle District of North Carolina in Greensboro may hear arguments in Fisher-Borne v. Smith, but we certainly hope to see the tag-team of Olson-Boies touching down at Piedmont-Triad International Airport in the near future.