Amendment One: the greater implications of the gay marriage ban

Apr. 10, 2012 10:18 am

According to a recent poll from Public Policy Polling, although a solid majority of likely primary voters said they would vote “yes” to the marriage amendment on May 8, the amendment would actually narrowly fail if voters were fully informed about its reach.

In fact, confusion among voters was a major theme. Take a look:

Q4. Do you think that a yes vote on Amendment One bans just gay marriage, bans both gay marriage and civil unions, legalizes gay marriage, or are you not sure?

Bans just gay marriage …………………………….. 28%

Bans both gay marriage and civil unions …….. 31%

Legalizes gay marriage…………………………….. 7%

Not sure …………………………………………………. 34%

A 34 percent plurality – meaning the largest percentage of respondents, though not more than half – said they didn’t know exactly what the amendment would do.

It was founding father Thomas Jefferson who said, “Whenever the people are well-informed, they can be trusted with their own government.”

Are you well-informed about the proposed constitutional amendment? Do you know what it says? What it will do?

The proposed amendment to the North Carolina constitution – known as Amendment One – says:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

It is the phrase “domestic legal union” that has caused so much confusion and holds so much potential weight. So what does it mean?

Well, no one seems to know.

On Nov. 8, four UNC School of Law faculty members published a report titled “Potential Legal Impact of the Proposed Domestic Legal Union Amendment to the North Carolina Constitution.”

(These faculty members are Maxine Eichner, Barbara Fedders, Holning Lau and Rachel Blunk.)

The authors stated that:

In prohibiting state validation or recognition of “domestic legal unions,” the proposed Amendment would introduce into the Constitution a phrase whose meaning is unclear, which has never been used in any prior statutory law in North Carolina or interpreted by our courts, and which has never been interpreted by courts in any other state.

Scott Holmes, an attorney in Durham, said looking to other states is the best indicator of how our own courts might interpret the amendment, though in this case, there aren’t many other examples.

“Other states have similar amendments, but they don’t have that language either,” he said. “Their language is slightly different in ways that are either broader or more limited, so that’s not going to be much help either.”

Here’s how other states have worded their marriage amendments

What’s certain

So let’s take a look at what we know the North Carolina amendment will do. First and foremost, the amendment will ban gay marriage.

There is already a statute outlawing gay marriage in North Carolina, but amendment supporters are concerned that the state’s supreme court may overturn this at any time, just as the Iowa supreme court did in 2009.

The National Organization for Marriage, a nonprofit interest group, provides North Carolinians with a pre-written email to senators, a portion of which states:

Marriage is too important to be left in the hands of unaccountable judges on the North Carolina Supreme Court. And we can’t afford to wait any longer. Opponents say that our law already protects against same-sex marriage — the same thing they said to the people of Iowa until the state supreme court forced same-sex marriage on the voters in that state.

The time to act is now. Please don’t wait for the courts to get it wrong. Don’t open the door for same-sex marriage in the future.

Eichner, Fedders, Lau and Blunk report that there are two certain impacts beyond banning gay marriage:

1. The amendment would prohibit civil unions and domestic partnerships under state law

Civil unions and domestic partnerships are legal agreements that, in some states, give couples many of the same protections and benefits as marriage. (Note: there are currently nine states that allow same-sex couples to enter civil unions.) These protections and benefits vary from state to state. The amendment would prevent North Carolina legislators from creating civil union or domestic partnership protections and benefits in the future.

2. The amendment would outlaw the domestic partner insurance benefits municipalities now offer to public employees

Several North Carolina municipalities offer domestic partner insurance benefits. The Town of Carrboro, Town of Chapel Hill, City of Durham and Orange County offer benefits to both opposite and same-sex domestic partners, while others – such as the County of Durham, City of Greensboro and County of Mecklenburg – offer benefits only to opposite-sex domestic partners. All of those benefits would be invalidated by the amendment.

The 2010 census reported 222,800 unmarried couples in North Carolina, of which roughly 90 percent are heterosexual relationships.

What’s uncertain

What we don’t know about the amendment is likely to be sorted about by the courts. Holmes said lawyers are going to “make a killing” if the amendment is passed, as they try to hammer out all of the uncertainties.

“It will create litigation to try to figure out how it will ripple out though the rest of the law,” he said. “What will happen is that there will be lots of cases in multiple areas of the law.

“Public resources are going to have to be invested in this issue to figure out what these words mean,” he added.

Holmes said he worries that areas of law that are fairly settled will become uncertain and that courts may be forced to shift focus from what’s best for each individual to whether the law complies with the new state policy.

Holmes referenced the confusion that ensued regarding domestic violence law after Ohio passed a marriage amendment. The Ohio amendment states:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

After Ohio added this amendment to its constitution, criminal defense lawyers attempted to throw out protective orders or domestic violence charges against their unmarried clients. Lawyers claimed that because their clients were not legally married to the person against whom they allegedly committed a domestic violence crime, the charge was void under the new law. Different courts came to different conclusions, which resulted in confusion until the Ohio Supreme Court settled the matter, ruling that the domestic violence laws were unaffected by the new amendment. There was a period of two and a half years between the passage of the amendment and this court ruling.

There are three major areas of law considered to be at risk under the proposed amendment, though Rep. Paul Stam, the House majority leader and strong proponent of Amendment One, argues that these concerns are unfounded. The scenarios outlined in the graphic at the top of the page apply only to heterosexual couples because recognition of same-sex couples is already prohibited by a North Carolina statute.

Rep. Stam addresses each of these issues, among others, in a post on the NC Values Coalition website. Rep. Stam writes that opponents of the amendment cite cases in Ohio as proof that domestic violence law will be at risk, but explains that those cases come from before the Ohio Supreme Court ruling that their amendment and the domestic violence statutes were not in conflict. He says that in all other states where marriage amendments have been adopted, domestic violence laws have continued to be enforced.

Rep. Stam also writes that he is confidant the courts will continue to handle child custody cases by focusing on the parent-child relationship and what is best for the child – not on the parents’ relationship status. He argues that the amendment’s caveat regarding private parties protects couples from trouble with hospital visitation and decision-making rights, saying:

Under G.S. 32A-18 “any competent person who is not engaged in providing health care to the principal for remuneration, and who is 18 years of age or older, may act as a health care agent.” The relationship between the patient and the designated agent does not matter.