After hinting at a possible bid for governor, N.C. Attorney General Roy Cooper has begun the obligatory pre-campaign task of wading into national wedge issues. Last weekend, when pressed on the topic of gay marriage by a reporter, Cooper responded with a clear and concise, “I support marriage equality.” Having only previously opposed North Carolina’s constitutional ban on same-sex marriage on the grounds of vague wording, Cooper’s statement more strongly defined his side on a position that is likely to polarize state politicians in the midterm elections.

Avoiding an engagement with judicial activism, however, Cooper has stated he will not abandon his duty to defend the marriage amendment — a position that may not be enough in the long-term for the LGBT groups that have already come out to support him. Four days before his statement on gay marriage, Cooper had already been announced as the keynote speaker for the 2013 gala for LGBT lobbying group Equality NC. And barely a day later, Cooper’s position was tested by Buncombe County Register of Deeds Drew Reisinger, who announced his office would begin offering marriage licenses to gay couples starting Tuesday. The awkwardness of Cooper’s position moving towards 2016 is notable but not unique among campaigns in states with gay marriage legislation on the books. His decisions on how to handle the tension will contribute to a growing discussion on the ways in which state politicians are compelled to act on their personal beliefs in the middle of elections.

Cooper’s case immediately brings to mind the 2010 situation of California’s then-Attorney General Jerry Brown, who refused to defend in court that state’s Proposition 8 to constitutionally ban same-sex marriage on the grounds that it violated equal protection under the 14th Amendment. By the time Brown announced his decision, he had declared his gubernatorial candidacy and begun campaigning in earnest — incidentally, national favorability of same-sex marriage had crept past the 50 percent mark and the California amendment had been ruled unconstitutional in a lower court. In a state that trends socially liberal, Brown’s move was less risky than a similar act by Cooper would be. An established politician with a known track record on gay rights in his first term as governor, Brown was unlikely to jeopardize his run by making such a statement. Cooper, conversely, is relatively new to the gay rights conversation. Having no strong record of vocal LGBT advocacy and coming into his support same-sex marriage remarkably late for a career Democrat, his decision to continue defending the state’s marriage ban seems appropriately cautious from the vantage of his future campaign.

A 2010 essay by University of Iowa law professor Todd Pettys outlined the dangers for state officials who take a perceived stance of legislative or judicial activism on same-sex marriage. The article focuses on the case of the three Iowa Supreme Court justices voted out of office after helping to overturn that state’s ban on same-sex marriage made them the target of social conservative groups both within and outside of the state. Pettys argues that the decision of the justices was grounded in solid constitutional reasoning, and the reaction of conservative voters had little to do with an objective evaluation of job performance: “the three justices did not lose their jobs by violating widely embraced conventions of constitutional reasoning. Rather, they lost their jobs by reaching a conclusion that many citizens found morally and politically objectionable.”

Throughout the campaign to oust the judges, the specter of judicial activism was raised by the conservative groups running attack ads. But as with Brown’s objections to Proposition 8, the marriage ban had been overturned not via an outright judicial agreement with same-sex couples’ right to marriage, but on the basis that it violated the state’s equal protection clause — notably broader than that of North Carolina’s constitution: 

Iowa Equal Protection Clause:

Laws uniform. SEC. 6. All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens. 

North Carolina Equal Protection Clause:

Sec. 19.  Law of the land; equal protection of the laws.

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.  No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.

Based on the specificity of the types of discrimination disallowed by the N.C. clause, Cooper would have less legal grounding to support non-defense of the marriage ban than the successfully-ousted Iowa judges. Despite his vow to continue defending the ban, the anti-same-sex marriage N.C. Values Coalition has already begun to fundraise off of Cooper’s statement, and claims of judicial activism would almost certainly be made were Cooper to take action on the ban. 

Pettys argues one of the factors that allowed for the Iowa judges’ ouster was the failure of supporters to effectively market the idea of constitutionality to voters, saying their campaigns should have argued that the constitution a state is the ultimate will of the people, regardless of Iowans’ general approval of same-sex marriage. Cooper is likely to be popular with LGBT voters in the state — evidenced by Equality NC’s continued support for him and silence on his decision to defend the marriage ban. It’s unlikely that Cooper would have much to gain from acting on his opposition to the ban at this time, but much to lose with the state’s conservative voters. Even if he follows through on his promise to defend the ban, his campaign will need to explore more clearly-defined constitutional arguments against it and effectively sell those arguments to voters — at least to deflate the conservative campaign already ramping up against him. 


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