The Implications of NC Marriage Amendment Will Affect Gays and Straights
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- TEXT OF THE PROPOSED MARRIAGE AMENDMENTMarriage 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.
With a 6-3 vote by county commissioners two years ago, Mecklenburg became one of seven N.C. jurisdictions to offer benefits to the same-sex domestic partners of its employees.
A May 8 statewide vote could erase the policy. Voters will decide whether to amend the state constitution to ban gay marriage, but the repercussions seem likely to affect straight and gay couples.
Both sides of the debate agree the amendment would keep the state from recognizing civil unions or domestic partnerships, which convey the legal rights of marriage to unwed couples. The topic is complex and how it affects residents varies, but states with similar amendments have grappled with a broader range of issues, from benefits for same-sex partners to who is covered under domestic violence laws. “It’s not just about same-sex,” said Rep. Paul Stam, the Republican majority leader who shepherded amendment legislation through the N.C. House last September.
The 2010 census reported 222,800 unmarried couples in North Carolina, a 55 percent increase in a decade.
Depending on how courts interpret it, the amendment could also interfere with protection from domestic violence, the ability to make medical decisions for unwed partners and even wills, legal experts say.
North Carolina’s proposed amendment is among four that define marriage as only between a man and woman, while barring legal recognition of any other relationships, said Maxine Eichner, a UNC Chapel Hill law professor who has analyzed the amendment’s legal effects.
The amendment’s reference to man-woman marriage as “the only domestic legal union” to be recognized has never been interpreted by North Carolina courts, she said.
“We know what the dictionary language is. We can assume that the courts will apply that,” Eichner said. “We can assume it will apply to couples who are not married. How broadly it is applied, we don’t know.”
Case law in other states suggests the amendment could cast a wide net, she said.
Ohio’s amendment threw domestic violence cases into turmoil for nearly three years. Michigan’s led to a ruling that public employers could no longer offer health benefits to employees’ domestic partners.
Marriage amendments have not been challenged in many states – proof, Stam said, that they have done little harm. Among them are South Carolina and Idaho, which have amendments similar to North Carolina’s.
Claims of sweeping effects “are definitely based on hypotheticals that aren’t likely to require litigation,” said Jeanette Doran, director and general counsel of the North Carolina Institute for Constitutional Law. The Raleigh institute focuses on constitutional limits to government.
Amendments vary in their wording and scope, as do the structure of state constitutions. Stam, an Apex lawyer who helped craft North Carolina’s proposal, said its intent is to answer the “real threat” to traditional marriage, not to discriminate.
But the lack of legal challenges, lawyers in other states say, doesn’t mean they’re benign.
“Why bring a case when you know you’ll lose?” said Marcia Zug, who teaches family law at the University of South Carolina. Nearly four in five voters approved the South Carolina amendment in 2006.
“There’s just no real support for those types of cases. There never was recognition, so there never was really a taking away.”
In other states
In Lansing, Mich., Krista Rowe is thinking of leaving her life-long home state.
Rowe, 41, and her wife, Susan, were joined in a 2010 commitment ceremony. Susan works for a public health agency. They expect the state to end Rowe’s health insurance, obtained through her wife, and benefits for the children they might someday adopt.
“It would be a very lonely proposition for us to move to another state,” she said, leaving behind family and friends. “But if it became easier for us to have a family or for me to visit my wife in the hospital …”
Rowe already packs her copy of a medical power of attorney whenever Susan seeks treatment for a chronic inflammatory disease.
Michigan legislators last year passed a bill, touted as cost-cutting, that prohibits state and local governments from providing benefits to same-sex partners. The state Supreme Court issued a similar interpretation of the Michigan marriage amendment in 2008.
Though it’s unclear whether the measure applies to them, state universities “fear a brain drain,” said John Holmquist, an employment lawyer in Troy, Mich. “It becomes a less favorable place to come and teach.”
Family-law experts in other states cite similar experiences.
In Nebraska, according to UNC School of Law research, the attorney general opined that the marriage amendment would bar legislation to let a domestic partner decide how to dispose of a dead partner’s remains.
In Idaho, the University of Idaho dropped plans to offer domestic benefits to unwed couples, said Liz Brandt, a law professor there. Some judges have persuaded same-sex couples to drop adoption petitions, she said, rather than deny them for violating the amendment.
“Gay people are not mentioned in the amendment anywhere, so what it really ends up doing is causing problems for other couples,” said state Sen. Nicole LeFavour, the legislature’s only openly gay member. “It just creates confusion and contention up and down society.”
No legal challenges have been filed, but LeFavour said debate over the marriage amendment has taken the focus off basic rights for gays. State legislators this month refused to even consider an anti-discrimination measure. State legislators in February refused to consider a measure extending human-rights protection to Idaho gays.
Domestic violence cases
After Ohio passed its amendment in 2004, defense attorneys argued that domestic violence laws on the books since 1979 no longer applied to people in relationships but not married. Courts ruled in their favor at least 27 times, the UNC Law research found.
“Most of us had no inkling this would happen,” said Michael Smalz, an attorney at the Ohio Poverty Law Center, a legal aid agency in Columbus. “It was a like a thunderbolt – all of a sudden, these cases were being screwed up.”
Most of the thrown-out cases involved heterosexual relationships, Smalz said. Some prosecutors declined to press charges, he said, and some of his own colleagues decided not to seek protective orders for their clients.
After nearly three years, the Ohio Supreme Court ruled that domestic violence law applies to unmarried partners. On Monday, a petition filed with the state’s attorney general called for another amendment vote, this one allowing gay marriage.
With 73 North Carolina homicides last year resulting from domestic violence, advocates fear Ohio’s experience could be replicated here.
“Based on what we’ve seen in other states that passed amendments, there has really been some damage to victims of domestic violence and how those laws are applied,” said Beth Froehling, executive director of the North Carolina Coalition Against Domestic Violence.
Stam, the House leader, calls such fears far-fetched.
“There’s no jurisdiction that I know of where (amendments) have affected domestic violence laws badly,” he said, noting that Ohio’s high court resolved legal conflicts there. “Nobody is saying that we want it to upset domestic violence law, zero.”
North Carolina’s domestic violence law covers an array of relationships, including family and household members, but refers only to opposite-sex living and dating relationships.
“Most judges judge with a common-sense perspective,” said Doran of the state’s Institute for Constitutional Law. “Just because people aren’t married doesn’t mean they are not entitled to protection from battery, threats or stalking.”
Mecklenburg County issue
About 10 Mecklenburg County employees use the county’s benefits for same-sex partners. They may find out how long the benefits last in May.
Stam said the amendment would prohibit government benefits based solely on domestic relationships other than marriage. Mecklenburg’s policy appears to fall into that category, offering benefits to employees with same-sex partners who share “exclusively mutual commitment.”
“It’s clearly a matter of interpretation, and I would have to leave it at that,” said county attorney Marvin Bethune.
A second sentence of the amendment, which will not appear on the ballot, says the measure “does not prohibit a private party from entering into contracts with another private party.” Stam said that wording is intended to clarify that private businesses may offer benefits if they wish.
Eichner, the UNC law professor, thinks it’s highly likely the county policy would be overturned. Less certain, depending on how courts interpret them, she said, is the amendment’s effect on adoptions, custody rights, medical powers of attorney or wills.
Stam is adamant that none of those areas would be affected. The amendment, he added, “doesn’t stop same-sex relationships, it doesn’t criminalize them, it just says don’t call it marriage.”
The real result of such votes, said Christine Johnson, director of the gay-rights South Carolina Equality Coalition, is social distrust. Many of South Carolina’s gays and lesbians, she said, are already afraid to come out to their own parents.
“To wake up the morning after an amendment like this and not know if it’s the person in the grocery store or the woman you carpool with who voted against you, it’s incredibly hurtful,” she said. “It’s a reality that other people don’t feel you’re the same.”
bhenderson@charlotteobserver.com
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