Legal experts: Same-sex marriage likely here to stay

By Laura Leslie

Raleigh, N.C. Legislative leaders said late Wednesday theyre evaluating their legal options to appeal the overturning of North Carolinas 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.

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 Virginias same-sex marriage ban unconstitutional.

That was the ruling that led to North Carolinas 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 Osteens 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 thats 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.

Raleigh family law attorney Angela Haas, who represents gay and lesbian clients, agrees with Eichner that an appeal likely wouldnt get a hearing.

The 4th Circuit has already ruled on the Virginia ban, which is very similar to the North Carolina ban. I dont think theyre going get anywhere with it, Haas said. I think its a very futile attempt, but theyre going to fight to the death. Theyre going to fight, fight, fight until theres no other place that they can fight.

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Legal experts: Same-sex marriage likely here to stay