The worn but obstinate paradigm of States’ rights and conservative values has reared its head once more against progressive legal change —this time in North Carolina. Republican legislative leaders Thom Tillis and Philip Berger have gone on a crusade against same-sex marriage.

On July 28, 2014, the Fourth Circuit Court of Appeals declared Virginia’s law forbidding same-sex marriage unconstitutional.1 The Court held that Virginia Code section 20-45.2 (“marriage between persons of the same sex is prohibited”) could not withstand strict judicial scrutiny, and denied same-sex couples due process and equal protection under the law as commanded by the Fourteenth Amendment of the United States Constitution.2

In the immediate wake of the Fourth Circuit’s decision, NC Attorney General Roy Cooper, understanding binding precedent and seeing the proverbial writing on the wall, asserted he would no longer defend NC’s similar law prohibiting same-sex marriage. While Cooper’s office rightfully acknowledged it was time to concede a losing legal battle, Tillis and Berger refused to give in.

The Fourth Circuit’s opinion is one of nearly thirty federal and state court decisions declaring the right to marry the person of one’s choosing—regardless of gender—a fundamental right, of which no state shall deprive its constituents. For Cooper, Tillis and Berger, as well as NC as a whole, the Fourth Circuit decision not only hits closest to home, just across state lines, but jurisdictionally it carries the most legal import to date.

In their recalcitrant response to the Fourth Circuit’s decision, Tillis and Berger avowed their obligation to defend the political will of the state’s popular majority. Tillis and Berger were referring to the 2012 popular amendment to the NC Constitution, which asserted the only marriages the state would recognize as valid were those between persons of the opposite sex.3 “Better than 60 percent of the people of North Carolina voted to have this provision put in our constitution,” Berger stated. “The people spoke clearly on this issue” and Cooper’s position “ignore[s] the will of the people,” Tillis proclaimed.4

The statute, along with Tillis’s and Berger’s rhetorical support of the law and its discriminatory effects, is both politically repugnant and legally flawed. In the span of two sentences, the statute denies same-sex couples the right to marry, though freely permitting “private parties” to enter into “contracts.”5 The law’s creation and application of different legal rights and standards to same-sex couples and heterosexual couples smacks of the odious and obsolete doctrine of “separate but equal.”

From its inception, proponents of segregation have cloaked the doctrine’s invidious nature in the language of liberty. In 1896, Supreme Court Justice Henry Billings Brown quoted government’s sacred responsibility of securing “equal rights . . . and equal opportunities for improvement and progress” to “each of its citizens” in his reasoning justifying racial segregation.6 In 1963, in his inaugural gubernatorial address, George Wallace proclaimed: “It is very appropriate that . . . today we sound the drum for freedom as have our generations of forebears before us done, time and time again through history.”7 In his next breath, irony notwithstanding, Wallace declared his allegiance to “segregation today . . . segregation tomorrow . . . segregation forever.”8

Similarly, while depriving gay citizens of what the Fourth Circuit, among other courts, has declared the “fundamental right to marry," the NC statute purports to be equitable insofar as it allows “private parties” to enter into “contracts.” In 2014, with the benefit of historical hindsight, the euphemistic language is easy to translate. As Speaker of the House and Senate President Pro Tem, Tillis and Berger should assert legislative leadership and declare the NC law for what it is: discrimination in shabby disguise. For as the Fourth Circuit asserted, denying same-sex couples the right to marry precludes their full participation in society, “which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”9

Instead, Tillis and Berger continue to defend the statute with references to the 2012 popular approval of the constitutional amendment. This argument, however, is ignorant of and repudiated by the centuries-old doctrine of judicial review. Institutionalized in the United States by Chief Justice John Marshall in Marbury v. Madison, the fundamental principle of judicial review, in accordance with our government’s separation of powers, is that courts have the authority—and responsibility—to nullify laws that violate the United States Constitution, regardless of popular support.10

Court after court has ruled that state laws denying same-sex couples the right to marry violate the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. Court after court has held that state laws denying same-sex couples the right to marry cannot withstand strict judicial scrutiny. Nevertheless, Tillis and Berger, in their steadfast defense of NC’s legal prohibition of same-sex marriage, remain dogmatically committed to captaining a sinking legal ship.

Tillis and Berger are surely aware of the losing legal nature of their position on same-sex marriage. However, their position comes at the expense of the human dignity and constitutional rights of same-sex couples generally, and NC same-sex couples in particular.

George Wallace later recanted his segregationist views and acknowledged their backwards nature. Justice John Harlan authored a famous dissent in Plessy because he understood that segregation was fundamentally incompatible with the notion of equal protection under the law. Likewise, North Carolina legislative leaders like Tillis and Berger can still demonstrate moral and political courage, and reverse their positions on same-sex marriage. Time is ticking, however, because the tide of legal precedent flows against them.

* Originally from North Carolina, Warren Hynson is a law student at New England Law | Boston

1Bostic v. Schaefer, No. 14-1167, 2014 WL 3702493 (4th Cir. July 28, 2014). Since the Fourth Circuit’s decision, multiple lawsuits have been initiated in North Carolina challenging the state’s ban on same-sex marriage.

2 It is worth noting the historical irony that one of Virginia’s earlier discriminatory laws prohibiting interracial marriage, declared unconstitutional in the 1967 landmark U.S. Supreme Court opinion decision, Loving v. Virginia, 388 U.S. 1 (1967), has helped pave the legal path to same-sex marriage equality.

3See N.C. Const. art. XIV, § 6.

4 Anne Blythe and Andrew Kenney, AG Roy Cooper Says Federal Ruling May Allow Gay Marriage In NC, The News & Observer, July 29, 2014, available at http://www.newsobserver.com/2014/07/28/4035691/ag-roy-cooper-says-federal-decision.html

5 N.C. Const. art. XIV, § 6.

6Plessy v. Ferguson, 163 U.S., 537, 551 (1896) (citing People ex rel. King v. Gallagher, 93 N.Y. 438, 448).

7 Governor George C. Wallace, Address at Gubernatorial Inauguration (January 14, 1963), available at http://web.utk.edu/~mfitzge1/docs/374/wallace_seg63.pdf

8Id.

9Bostic, No. 14-1167, 2014 WL 3702493 *17

10Marbury v. Madison, 5 U.S. 137 (1803)