Candidates question impact of same-sex ruling

by Craig Jarvis and Colin Campbell, News and Observer, October 11, 2014

Editor's note: Story has been updated to clarify the candidates' comments on the ruling.

Appeals of several states’ bans on same-sex marriage that bounced around the federal judiciary last week culminated Friday with a judge legalizing same-sex unions in North Carolina – just a little more than three weeks before the general election.

Over the weekend, Republican and Democratic campaigns started assessing what that might mean for them.

It is particularly relevant in the race for U.S. Senate, since the constitutional amendment that North Carolina voters approved in 2012 was put on the ballot by the state House Speaker Thom Tillis and the GOP-controlled General Assembly. It was declared unconstitutional by a judge President Barack Obama appointed at Democratic Sen. Kay Hagan’s recommendation the previous year.

The ruling intensifies the two distinct strategies that the two have employed: Tillis tying Hagan to Obama and the president’s policies, and Hagan connecting Tillis to the state legislature, where a Republican revolution during the past three years has led to controversy and legal challenges.

“It nationalizes the election and focuses it on federal issues that deal with the U.S. Senate: One key role is confirming or not confirming the president’s judges,” said Dallas Woodhouse, who runs Carolina Rising, a conservative nonprofit organization based in Raleigh, which doesn’t take a position on this issue. “If you don’t like this ruling, it is appropriate to take it out on Kay Hagan.”

Chris Sgro, executive director of Equality NC, which fought the amendment, says Tillis is misleading voters when he claims a majority of voters in the state approved the amendment – since fewer than one-third of the registered voters turned out – as justification for vowing to continue the legal fight to preserve it.

“I really think the gamble that Thom Tillis took to appeal to the smallest part of his base is not going to pay off,” Sgro said. “Tillis really needs to win moderates.”

Faster than expected

In 2011, Rep. Paul “Skip” Stam, a Republican from Apex, warned legislators that even though same-sex marriage was already against the law in North Carolina, the law had to be enshrined in the constitution to protect it. He said changing demographics as more people move into the state – bringing same-sex divorce and child-custody issues with them – would eventually force the issue.

During that time, Tillis told a group of college students that he thought there was a generational divide over same-sex marriage and that it would be repealed within 20 years. No one expected it would unravel this fast.

After the U.S. Supreme Court on Monday declined to take up any of the legal challenges to several states’ marriage bans, and again following U.S. District Judge Max Cogburn Jr.’s ruling Friday, Tillis said North Carolina would continue to challenge it in court, because he thought it was his responsibility to carry out the voters’ decision.

In the 2012 election, roughly 30 percent of the state’s registered voters cast ballots on the marriage amendment. Of those, 61 percent were in favor of banning same-sex marriage; opponents point out that that adds up to only about 20 percent of the state’s voters registering approval of the amendment, but proponents say what counts is who shows up.

Since then, polls have shown a gradual acceptance of same-sex marriage across the state, although people are roughly evenly split on the issue.

Whom will it help?

Candidates on both sides hope the ruling turns out voters for their side and also sparks fundraising. It’s uncertain whom that helps.

Andrew Taylor, a political science professor at N.C. State University, said the ruling will likely benefit Republicans more than Democrats on Election Day.

“The desire to change status quo policy is the motivator of the base voters,” he said. “The status quo is gay marriage now. … In some ways, disappointment and frustration can be a more motivating factor.”

Michael Bitzer, a Catawba College political science professor, said the ruling could lead to higher turnout on both sides. In addition to bringing out social conservatives for Tillis, “it could energize urban Democrats, and that would certainly help Kay Hagan,” Bitzer said. “It could have the effect of helping both candidates.”

Bitzer says there’s a chance Tillis’ efforts to fight the ruling could hurt him among more moderate suburban voters. Some might see it as a waste of tax dollars to fight an inevitable change.

Taylor said this election will be less focused on persuading swing voters. “Midterms will be largely about getting people to the polls rather than getting independent or undecided voters to vote for you, and I think that’s the calculation Tillis is making with this decision,” he said.

Neither candidate would comment on the ruling on Saturday, although a spokesman for Hagan reiterated her opposition to the amendment, and criticized Tillis for pursuing a challenge. Rep. Renee Ellmers' campaign also declined to comment. Challenger Clay Aiken's campaign couldn't be reached for comment.

Judges vs. legislature

Sgro, of Equality NC, said he thinks the judge’s ruling illustrates a mood in North Carolina that is a backlash against the legislature, which will translate into lost Republican seats in the General Assembly.

“Regardless of what you think of same-sex marriage, it’s very clear (the amendment) was another in a progression of places where the General Assembly has overstepped,” Sgro said.

Tami Fitzgerald, executive director of the N.C. Values Coalition, which helped pass the marriage amendment, promised that the ruling would spur her group’s efforts.

“We will make every effort to inform the voters of North Carolina that Kay Hagan nominated the judge who overturned the marriage laws of the state that voters approved two years ago,” she said. “It’s because of Kay Hagan and Barack Obama that a federal judge would overturn the will of voters in our state and other states.”

Cogburn was a federal prosecutor and then a federal magistrate judge in Western North Carolina, until Hagan recommended him to become a federal district judge based in Asheville in 2011. The Senate unanimously approved him.

The other federal judge who was considered likely to overturn the state’s same-sex marriage ban, William Osteen Jr., was nominated by President George W. Bush before Hagan was in the Senate. Osteen had delayed his decision on Friday.

The judges appeared to have little choice. Both are bound by decisions of the 4th U.S. Circuit Court of Appeals, which already had declared a similar ban in Virginia to be unconstitutional. The U.S. Supreme Court had declined to hear appeals of that decision and others.

Rep. Ruth Samuelson, a Charlotte Republican who has been involved in recruiting candidates, said she thinks voters will pay more attention to the judicial candidates at the bottom of the ballot.

“I think it could energize a large portion of the population that can’t understand why a judge can overturn their votes,” Samuelson said.

John Rustin, president of the N.C. Family Policy Council, hopes that happens.

“The ruling was frustrating, but also I hope it helps bring a greater level of interest, particularly in the judicial elections,” Rustin said. “There are so many issues now being fought in the courts.”

Woodhouse, with Carolina Rising, said the judge’s decision could shake some voters out of their apathy in any of the races.

“Maybe you don’t love either candidate, but you have to make a choice: Are you going to vote for the person who stood with Obama’s federal judge, who just overturned North Carolina’s constitutional amendment?” Woodhouse said.