Amendment One
On May 8, 2012, North Carolina citizens will be going to the polls to cast their vote in the Republican Primary. Also at stake in this election is an issue which should be of great importance to all voters, regardless of their political party, whether to vote FOR or AGAINST a proposed amendment to our North Carolina State Constitution. North Carolina Senate Bill 511, more commonly referred to as “Amendment One,” asks voters to decide whether to amend the State Constitution to limit the types of domestic relationships which shall be deemed “valid” or capable of being “recognized” in this State. Sponsored by Senator Peter Brunstetter, the actual title of the Bill is: “An Act to Amend the Constitution to Provide That Marriage Between One Man and One Woman is the Only Domestic Legal Union That Shall Be Valid or Recognized in This State.” The language of the Bill, proposing to add a new section to Article XIV, is as follows:
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.
The purpose of the proposed amendment, according to its sponsors and proponents, is to prevent a rogue judiciary with a liberal agenda from overturning existing statutory prohibitions against gay marriage in this State.
But I thought it was already illegal for homosexual couples to marry in North Carolina?
North Carolina General Statute Section 51-1 limits legal marriage as between “a male and female person” only, and further prohibits courts in this state from recognizing same sex marriages created in other states under the Full Faith and Credit clause of the United States Constitution. A constitutional amendment, argue proponents of the bill, would prevent liberal judges from eroding the applicability of this statute and would ensure that same sex couples may not receive the same or similar rights/benefits as married couples. However, many judges, attorneys, law professors and other professionals from across the political spectrum have come out in opposition to Amendment One, concerned that the language of the proposed amendment is so broad that it goes far beyond the current ban on same-sex marriage and places the rights of both homo- and heterosexual couples and families at risk. Of particular concern is the fact that there is currently no definition of exactly what constitutes a “domestic legal union” in the laws of North Carolina or of any other state. In fact, the language of North Carolina’s proposed marriage amendment is significantly broader than marriage amendments that have been passed in other states. The language of Amendment One would introduce terms and concepts into our State Constitution that are not clear on their face, have never been interpreted by our Courts, and the impacts of which are untested and uncertain as to meaning and scope.
If gay marriage is already banned in North Carolina, what impact would this Constitutional Amendment have on family law in this State?
My short answer is that we aren’t is exactly sure. In declaring that no “domestic legal union” other than heterosexual marriage “shall be valid or recognized by this state,” Amendment One goes beyond the parameters of the existing statutory ban on gay marriage and into uncharted legal territory. N.C. General Stat. Section 51-1 forbids homosexual marriage, however it does not limit the State’s ability to grant a more limited set of rights and protections to same sex or opposite sex unmarried couples living here. In fact, despite the statutory prohibition against marrying, both homo and heterosexual couples may create marriage-like relationships with one another through legal documents such as wills, grants of powers of attorney, health care and financial directives and designations within some employer benefit programs. These relationships in turn confer benefits to unmarried partners and their children, for example in the receipt of health insurance benefits.1 Amendment One would most certainly put an end to these benefits. Since the Amendment states that the only “domestic legal union” which is valid or recognized would be heterosexual marriage, alternative arrangements would not be capable of legal existence and therefore members could not receive benefits. For employees of two of the State’s largest counties and two of its five largest cities, all current domestic partner benefits would come to an immediate end. Employees of private companies, including Bank of America, may also see their rights affected.
What about the Amendment’s language regarding contracts which would continue to be recognized?
The problem with the logic that unmarried couples could avoid the harsh application of Amendment One by executing binding legal contracts with one another is that a number of important issues cannot be covered by such documents. For example, a will is not a contract. If Amendment One passes, one member of an unmarried couple who devises his or her property to the other would be open to challenge by the deceased partner’s relatives, who might claim that the will was procured by undue influence in that it was the result of a domestic relationship deemed unlawful by our State Constitution.
So too, financial and health care powers of attorney executed on behalf of unmarried partners would be subject to challenge, potentially meaning that the surviving partner could not make important end of life decisions including advanced directives such as whether or not to continue life on a breathing machine or feeding tube, or whether to donate organs.
I’ve heard that Amendment One could remove the protections of domestic violence laws from unmarried couples?
This is a hotly debated issue. Just days ago a number of state district attorneys and member of law enforcement came out with the claim that domestic violence laws would be unaffected by Amendment One. However, Chapter 50B of our state statutes limits domestic violence protections to persons in a “personal relationship” with one another. The law defines this to include the following six categories: (1) current or former spouses; (2) persons of the opposite sex who live together or have lived together; (3) parents and children and grandparents and grandchildren, including persons acting in loco parentis to a minor child; (4) people who have a child in common; (5) current or former household members; and (6) people of the opposite sex who are in a dating relationship or have been in a dating relationship. North Carolina courts have consistently applied the domestic violence protections in cases involving unmarried straight and gay couples. However, the proposed Amendment which limits our State’s recognition of “personal relationships” to only married couples would consequently restrict the availability of civil and criminal protections for unmarried victims of domestic violence.
In a recent article discussing the Amendment, respected legal scholar and professor of family law at Wake Forest University Suzanne Reynolds wrote the following:
Unlike other law protecting us from criminal conduct, domestic violence law requires that the victim and batterer have a “personal relationship.” We learned by tragic experience in this country and state that the more general law of assault and battery simply is inadequate to address the very different threat of violence in the home. Before someone is entitled to the extraordinary relief that the law of domestic violence provides, however, the victim must have a “personal relationship” with the batterer. Currently in North Carolina, a victim may invoke the law of domestic violence for her protection even if that “personal relationship” is an unmarried relationship – between persons of the same or different sexes.
But if Amendment One passes, the state constitution ties the state’s hands: the state will be constitutionally forbidden from recognizing an unmarried relationship as a valid “domestic legal union.” If a batterer lives with his victim – of the same or different sex – he will surely argue that the victim lives in a domestic union that the state constitution declares is no longer legal. Consequently, she must rely on the law of assault and battery – law that we already know is inadequate to the special vulnerability of someone who is battered in the home.
Why am I so certain that batterers will raise these arguments? Because in states with marriage-related amendments, they already have. The domestic violence laws of these other states, like the current domestic violence law of North Carolina, protected persons who were unmarried. But after the state passed a marriage-related amendment, batterers argued that the amendment restricted domestic violence protection to married victims and batterers.
Eventually the appellate courts of both states concluded that the wording of the constitutional amendments did not prevent the state from continuing to use domestic violence law to protect victims in unmarried relationships. But, both of those amendments were much narrower than the breathtakingly broad Amendment One. In both states, the marriage-related amendments restricted the state only from creating a status that approximated marriage.That is not what Amendment One does. Amendment One tells the state of North Carolina that no domestic union except marriage is legal or valid.
Are there any other consequences if Amendment One passes?
Absolutely. This post is simply meant to identify some of the key issues in this debate, which I hope motivates further investigation by voters. The current child custody laws in North Carolina allow unmarried couples to create families and to exercise legal rights with regard to their children. The passage of Amendment One threatens to undermine decades of progress in this area of the law. If unmarried couples, particularly same sex couples, are incapable of legal recognition by North Carolina courts, this calls into question the ability of an unmarried parent’s ability to enforce existing custody orders or to pursue custody or visitation rights in the future.
The simple fact is, the language of the proposed Amendment is unduly vague, and the (perhaps unintended) consequences far too great. Courts will struggle, as they have for years in other states, with how to interpret the language of this poorly drafted amendment. North Carolina families, including tens of thousands of children, could be negatively affected by the application of this amendment in seeing their benefits eliminated, their parents’ relationships not recognized, their access to domestic violence protections threatened, and their custodial relationships with unmarried parents at risk. For more information, read the paper written by Professor Maxine Eichner of the University of North Carolina, Chapel Hill entitled, "Potential Legal Impact of the Proposed Domestic Legal Union Amendment to the North Carolina Constitution"
–Jennifer Bennett joined Hodges & Coxe PC as an associate attorney in 2010 and currently practices in the areas of general civil litigation and matrimonial law, focusing on divorce, child custody disputes, establishment and defense of child and spousal support obligations, equitable distribution and marital tort claims. You can reach her at (910) 772-1678 or at jbennett@hcpplaw.com
