the misadventures of weather boy

Followup on cohabitation law

The News & Observer ran an article today noting the realities of jurisdiction--Thursday's ruling in Hobbs v. Smith striking down G.S. § 14-184 only enjoins the parties involved from enforcing G.S. § 14-184. This would prevent the Pender County Sheriff's Department from enforcing G.S. § 14-184, but not any other law enforcement agency with jurisdiction inside of the court's jurisdiction (in this case, Pender and New Hanover counties). The order will presumably also enjoin the district attorney as well, which would create a situation where some law enforcement agencies would be allowed to arrest for violation of G.S. § 14-184 (like they would!) and the district attorney would be enjoined from prosecuting such cases (like he would do it anyway!).

In addition, the ruling is only really precedential in the Superior Court's jurisdiction. Other judges may find the ruling instructive (the presumed reasoning of Lawrence v. Texas would obviously apply everywhere), but they would not be required to strike it down because of this decision. The ruling isn't precedential the same way an appellate court's ruling would be.

Given this complication, it seems more likely to me that the Attorney General will appeal the ruling for the purposes of reaching a precedential decision that would clear up the situation and apply statewide. Since the N.C. Court of Appeals is a court of mandatory jurisdiction for appeals, the assigned panel would have to do something with the case (either decide with or without oral arguments). However since the case would involve the unconstitutionality of a State law, the Court of Appeals would likely fully hear the case.

Although it is highly unlikely this case would reach the U.S. Supreme Court, it probably would result in the law being struck down. The Lawrence Court in 2003 had Stevens, Kennedy, Souter, Ginsburg, and Breyer in the majority, with O'Connor concurring with them on seperate grounds (she believed the Texas law was unconstitutional because it violated equal protection by treating gays and straights differently). That majority is still around, and as Kennedy was the one who wrote the opinion in a very forceful fashion (including Stevens's condemnation of the majority in the case Lawrence overturned, Bowers v. Hardwick), it would probably be a 5-4 result to strike down the law. I doubt that the Court would be inclined to waste their time with this case.

Labels: law

posted by weather boy @ 9:35 PM