North Carolina’s attorney general announced yesterday he would not continue defending his state’s traditional marriage laws after a federal appeals court struck down a similar statute in neighboring Virginia.
“Our attorneys have vigorously argued this case every step of the way,” Attorney General Roy Cooper, a Democrat, said during a press conference. “But the 4th Circuit has ruled and the 4th Circuit is clear, along with every federal court that has addressed this issue. Therefore, there are really no arguments left to be made.”
The 4th U.S. Circuit Court of Appeals covers the Carolinas, West Virginia, Maryland, and Virginia, where it struck down a constitutional amendment defining marriage as only between one man and one woman. It also struck down a law banning recognition for same-sex marriages performed in other states.
After Cooper’s announcement, South Carolina Attorney General Alan Wilson said he would continue to fight the attempt to overturn his state’s traditional marriage laws.
Unlike several Democrats serving as attorneys general in other states, Cooper said earlier this year he intended to defend North Carolina’s laws, even though he supports same-sex marriage. He insisted on Monday that he had done his job. Continuing to fight an issue the appeals court has already decided is futile, he said.
Based on the 4th Circuit’s ruling in the Virginia case, it is almost certain North Carolina’s law will be overturned as well, he told a room full of reporters. It’s time for North Carolina to “stop making arguments we will lose and instead move forward, knowing the ultimate resolution will likely come from the U.S. Supreme Court.”
Although Cooper said he didn’t expect same-sex marriages to begin in North Carolina any time soon, it’s not clear what will happen when the first case goes to court and presumably is decided in favor of the plaintiffs.
In May, Pennsylvania Gov. Tom Corbett decided not to appeal a lower court ruling against his state’s traditional marriage law, saying a challenge was “extremely unlikely to succeed.” Counties began issuing same-sex marriage licenses immediately, and the U.S. Supreme Court on July 9 rejected one clerk’s attempt to get the law reinstated.
The state of marriage
Until 2003, same-sex marriage was banned in all 50 states. But a lot has changed in the last decade. Eighteen states now allow same-sex marriage, either through legislative action or voter referendum. After the U.S. Supreme Court overturned the federal Defense of Marriage Act in 2013, judges in 17 states have struck down statutes upholding traditional marriage. Cases challenging traditional marriage laws have been filed in all states that ban same-sex marriage. The question of whether states can determine what constitutes marriage within their borders will eventually be decided by the nation’s highest court.
The map below shows the state of marriage in each state, with more details about each one listed below.
Judicial activism in 2013 and 2014:
- Florida—A circuit judge rules same-sex couples can marry in the Florida Keys. Another circuit judge issues a similar ruling for Miami-Dade County. Neither ruling applies to the rest of the state.
- Colorado—A state judge struck down the voter-approved same-sex marriage ban in July. A federal judge followed suit later that same month.
- Kentucky—A federal judge declared unconstitutional the state’s ban on same-sex marriage, approved by voters in 2004.
- Indiana—A federal judge declared unconstitutional the state’s statutory ban on same-sex marriage, enacted in 1997.
- Wisconsin—A federal judge ruled the state ban, approved by voters in 2006, was unconstitutional.
- Pennsylvania—A federal judge declares the state's voter-approved ban unconstitutional. Gov. Tom Corbett decides not to appeal.
- Oregon—A district judge declares its voter-approved ban unconstitutional.
- Idaho—A federal judge ruled the state's 2006, voter-approved ban is unconstitutional.
- Arkansas—A county circuit judge strikes down the state's ban, approved by voters in 2004.
- Ohio—Judge orders state to recognize same-sex marriages performed in other states. Ruling stayed pending appeal.
- Tennessee—A federal appeals court stays a lower court judge's orders that the state must recognize three same-sex marriages performed in other states. The ruling does not yet apply to other couples. The state is appealing the decision. Same-sex marriage was banned by constitutional amendment in 2006.
- Michigan—Constitutional ban overturned by federal judge. Judge’s ruling stayed pending appeal.
- Texas—Constitutional ban overturned by federal judge. Judge’s ruling stayed by the U.S. Supreme Court pending appeal.
- Kentucky—Judge orders state to recognize same-sex marriages performed in other states.
- Virginia—Constitutional ban overturned by federal judge. Judge’s ruling stayed pending appeal. The 4th Circuit upholds the lower court ruling.
- Oklahoma—Constitutional ban overturned by federal judge. Judge’s ruling stayed pending appeal.
- Utah—Constitutional ban overturned by federal judge. Judge’s ruling stayed by the U.S. Supreme Court pending appeal. (2013)
Legalized in 2013:
- New Mexico—by state Supreme Court ruling
- Illinois—by state statute
- Hawaii—by state statute
- New Jersey—by a judge’s ruling
- California—by a federal judge’s ruling in 2010. The ruling did not go into effect until the Supreme Court upheld it in 2013.
- Minnesota—by state statute
- Delaware—by state statute
- Rhode Island—by state statute
Legalized in 2012:
- Maine—by voter referendum
- Maryland—by voter referendum
- Washington—voter referendum
Legalized in 2011 and 2009:
- New York—by state statute (2011)
- New Hampshire—by state statute
- Vermont—by state statute
- Iowa—by state Supreme Court ruling
Legalized in 2008:
- Connecticut—by state Supreme Court ruling
- Massachusetts—by state supreme court ruling
Banned in 2012:
- Nevada—Constitutional ban upheld by a federal judge, under review in federal appeals court
- North Carolina—by constitutional amendment
Banned by constitutional amendment in 2008:
Banned by constitutional amendment in 2006:
- South Carolina
- South Dakota
Banned by constitutional amendment in 2005 and 2004:
- Kansas (2005)
- North Dakota
- Oregon—Recognizes same-sex marriages performed in other states
- Nebraska—by constitutional amendment in 2000
- West Virginia—by state statute in 2000
- Alaska—by voter referendum in 1998
- Indiana—by state law in 1997
- Pennsylvania—by state statute in 1996
- Wyoming—by state statute in 1977