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Legal experts: Same-sex marriage likely here to stay

Tags:
  * Same-Sex Marriage

Posted October 15, 2014
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  * Judge: GOP can intervene in gay marriage cases
  * Same-sex couples line up for marriage licenses, adoption papers
  * Federal judge strikes down NC's same-sex marriage ban

By Laura Leslie

Raleigh, N.C. — Legislative leaders said late Wednesday they’re evaluating their legal options to appeal the overturning of North Carolina’s constitutional ban on same-sex marriage. But legal experts say such an appeal is unlikely to succeed.

Over the past week, two federal judges – one in Asheville, one in Greensboro – have ruled that the amendment violates the U.S. Constitution and have ordered state officials to stop enforcing it.
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U.S. District Judge Max Cogburn denied legislative leaders’ request to be allowed to intervene in the case. However, U.S. District Judge William Osteen granted them standing in the case.

That leaves the door open for a potential appeal of the ruling. However, constitutional and family law experts agree an appeal is unlikely to succeed. The court to which any North Carolina appeal would go would be the 4th U.S. Circuit Court of Appeals, the same court that ruled Virginia’s same-sex marriage ban unconstitutional.

That was the ruling that led to North Carolina’s ban being overturned as well.

University of North Carolina School of Law professor Maxine Eichner, who specializes in family law, predicts the 4th Circuit will refuse to hear the appeal, instead issuing a summary order upholding Osteen’s ruling. Legislators could also petition the court for an emergency stay that would put same-sex marriage on hold temporarily in North Carolina, but Eichner doubts that’s likely, either.

In order for lawmakers to win on appeal, she said, “The 4th Circuit would have to reverse its previous decision. There is nothing to suggest that it would plan to do that.”