Now that the Fourth Circuit Court of Appeals has struck down Virginia’s marriage ban for same-sex couples, the question turns from “if” gay marriage will be allowed in North Carolina to “when” it will occur.
As other states have seen their state constitution amendments regulating marriage as between one woman and one man fall by the gavels of judges, the Carolinas and the Virginias awaited the decision coming out of a federal district court judge’s February decision.
And like so many other federal courts, the ruling was one to be expected, even from what many consider as one of the most conservative circuits in the country.
Understanding how the judicial process works, and where things go from here, can be a bit confusing. So here’s an attempt to answer some basic questions on where things go from here:
How does the Virginia case impact North Carolina?
Because Virginia’s case was dealt with by federal courts—first by a federal district trial court judge and now by a federal court of appeals 3-judge panel —North Carolina is potentially impacted by the fact that the state is in the same “circuit,” or region, as Virginia, known as the Fourth Circuit Court of Appeals.
Based in Richmond, whenever cases out of South or North Carolina, Virginia, West Virginia, or Maryland are appealed from the federal district court, the next legal stop is typically to a three-judge panel from that state’s circuit court of appeals.
When a court of appeals rules on a case, that opinion becomes binding on that state which the case originated from and can impact similar cases within the other states in that circuit. But for another state (say, North Carolina) to be direct impacted by the appeals court’s decision, a judge in that state (N.C.) would need to declare the ban unconstitutional, following the appeal court’s decision.
How can federal courts strike down state constitutional laws?
Welcome to judicial federalism, or the division of judicial power within our republic. In essence, the United States operates with 51 judicial systems: one federal court system and 50 independent state systems, each with its own set of laws and constitution.
However, the constitution that reigns supreme is the U.S. Constitution, under Article VI of that document which is the “supreme law of the land.” This makes not only state laws subject to the U.S. Constitution, but state officers as well.
This is inherent in the debate over which governmental level — federal or states —have the power over each other.
An important case that may influence the marriage bans within state constitutions is Romer v. Evans, in which the Supreme Court of the United States struck down a state constitutional amendment in Colorado. In that case, voters had approved an amendment barring extra legal protections that cities wanted to extend to gay and lesbian citizens. The U.S. Supreme Court, under Justice Kennedy’s opinion, held that the state could not violate the federal constitution’s Equal Protection Clause under the 14th Amendment.
North Carolina’s Attorney General Roy Cooper, a Democrat, said that the state should stop defending the state’s constitutional amendment on marriage. Can the Republican-led North Carolina General Assembly require his office to defend it anyway?
Well, the state legislature could, but since both North Carolina and the United States government operates under the principle of “separate institutions sharing power,” it would be difficult for the lawmakers to tell the law executors what they can and can’t do.
Legislatures can direct executives to do things, usually by passing laws, but executives can decide how to best interpret that law’s enforcement. Legislatures can use the power of appropriations, for example, to force executives to spend money on actions that they would rather not carry out, but ultimately it comes down to the fact that different parties and actors have to share power, especially when that power is divided between many different players.
And while state senate president pro tem Phil Berger and even the governor can issue calls for the state’s attorney general to enforce the law, the attorney general can respond by saying “the law is unconstitutional, and it’s my duty not to enforce unconstitutional laws.”
How might the ruling impact North Carolina’s Senate race?
That’s one of the great unknowns at this point. Democrats, most likely in urban areas of the state, could certainly be energized, since the party has moved much more into supporting gay rights and marriage equality. Republicans, especially rural conservatives and social evangelicals, could feel threatened by the speed of the issue; oftentimes feeling ‘threatened’ is a powerful motivator to get your supporters to the polls.
It may take some time for the issue to settle into the campaign and resonate with the electorate, but both sides have the potential to use the issue to their advantage, or be burned by it as well (provoking the other side).
So what’s next for North Carolina’s constitutional amendment?
Most likely, one of the four North Carolina cases currently being tried in federal district court may seek to use the court of appeals’ decision to declare the state’s marriage amendment unconstitutional.
As to the Virginia case, it could be revised by the entire 4th Circuit in what is called an en banc hearing, but most likely the case is headed for the U.S. Supreme Court. The federal courts in North Carolina could await that decision, most likely in the next term, which starts in October.
Most legal analysts see the U.S. Supreme Court taking a case, be it the Virginia case or one out of the 10th Circuit out west, or perhaps both and others, and resolving the issue for the entire nation.
One thing is for sure: The clock continues to tick.