Amending the Amendment

Amending the Amendment

West face of the United States Supreme Court b...West face of the United States Supreme Court building in Washington, D.C. Español: Edificio de la Corte Suprema de Estados Unidos en Washington, D.C. (Photo credit: Wikipedia)

A few days ago, Amendment One was passed in North Carolina by a margin of 61 percent to 39 percent according to unofficial results, with only seven of North Carolina’s 100 counties voting against the Amendment. Opponents of the Amendment, which included not only those in favor of marriage for homosexuals, but those in favor of civil unions, and those worried about the unintended consequences of the Amendment (as discussed earlier), are now searching for ways to “repeal” or at least amend Amendment One.

The North Carolina Supreme court has the power to void a law passed by the North Carolina general assembly if the justices determine that the law is in conflict with the North Carolina Constitution. However, Amendment One is not a law, but rather is now part of the North Carolina Constitution and therefore, by definition, it is not unconstitutional. This power of the North Carolina courts is one reason given by the supporters of Amendment One as to why the amendment was needed when there was already a law in North Carolina restricting marriage to being between a man and a woman. The supporters were fearful that the North Carolina Supreme Court may one day find the old defense of marriage law to be in conflict with the equal protection provisions of the North Carolina Constitution.

The process that opponents of the Amendment must take is the exact same process that the supporters of the Amendment used to get it passed. North Carolina does not have a statewide initiative process like some other states, most notably California, so either two-thirds of the members of each house of the General Assembly call for a constitutional convention, or, three-fifths of all members of each house vote to send a proposed amendment to the voters. Then a simple majority would govern.  

The only other method for the removal of Amendment One, and indeed for all federal and state laws and state constitutions, is for the United States Supreme Court to determine that the US Constitution forbids restricting marriages to opposite-sex couples only. Currently, the case of Perry v. Brown, a case decided by the U.S. Court of Appeals for the Ninth Circuit, found that a California law outlawing same sex marriages violated the U.S. Constitution. The case will likely reach the U.S. Supreme Court, who would then have the opportunity to overturn not only that California law, but all laws in the United States, including Amendment One. There is some precedent for this despite marriage being historically a state, rather than a federal, institution, in the case of Loving v. Virginia, which found that banning interracial marriages was a violation of the U.S. Constitution.

For the supporters of same-sex marriage bans, the trump to the U.S. Supreme Court is a version of Amendment One in the U.S. Constitution. That amendment would require two-thirds of each house of Congress and ratification of three-fourths of the states (38 of the current 50). This was attempted last in 2006, where such an amendment failed to recieve the two-thirds majority in the House of Representatives.

–Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678. 

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