Against North Carolina Amendment One: The Law Of Unintended Consequences
Today early voting begins in North Carolina for the May 8 primary election. Now that Rick Santorum has abandoned his campaign for President, the most important issue facing North Carolina voters, of any or no party, is to vote FOR or AGAINST the following amendment to the State Constitution:
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 amendment appears on the ballot because in November 2010, North Carolina voters understandably outraged by an unemployment rate above ten percent, a spectacularly corrupt statewide Democratic Party that had run North Carolina for over 100 years, and a government in Washington seemingly more concerned about promoting solar power and mandatory health insurance than about getting the economy back on track (though it had plenty of time to interfere with elections in a city with a population under 25,000), threw the bastards out. They voted out longstanding Democratic majorities in the State House and Senate, and would have voted out the Governor and the State Dog Catcher if they'd been on the ballot.
The newly empowered Republican legislature, after running on a platform of economic freedom, budget reform, and government transparency, promptly delivered to voters concerned more than any other issue about jobs hemorrhaging from their cities and towns … a constitutional amendment to ban same-sex marriage, which is already illegal in North Carolina …
thus delivering on a longstanding promise that motivated exactly zero voters to switch their support from the Democrats to the Republicans.
How many people of the people voting on May 8 have read the Amendment's text and considered the effect it will have on the State and its people if passed? I don't know, though I suspect that many of the legislators who put it on the ballot haven't. I have, and for reasons which will follow in this and succeeding posts, I recommend that my fellow North Carolinians vote against Amendment One.
What is Amendment One supposed to accomplish?
According to its sponsors, the Amendment will prevent rogue judges from overturning existing statutory law (N. C. G. S. 51-1), which defines marriage as between "a male and female person", by inventing a right under the North Carolina Constitution for same sex couples to wed. The Amendment will also prevent judges from forcing the State to recognize same sex marriages, or civil unions, solemnized in other states under the "full faith and credit" clause (Article IV, Sec. 1) of the United States Constitution.
Since the Constitution is the supreme law of North Carolina, the Amendment will indeed prevent either of these scenarios from coming to pass. Of course, given the history, and past, present, and likely future makeup of the North Carolina Supreme Court, a body which so rigidly adheres to precedent that it refuses to abolish the antediluvian torts of alienation of affections and criminal conversation (common law torts which allow a cuckolded spouse to sue the "other woman / man" for money damages), despite the fact these laws make the State a national laughingstock, it is safe to say that there is precisely zero chance of a final judgment in this State ever recognizing a Constitutional right to same sex marriage.
I thought the law already defined marriage as a union between one man and one woman?
It does. The question on May 8 is whether the Constitution should be amended to include that definition and (as we'll see below) a whole lot more.
If there's no chance that some rogue judge can "invent" a right to same sex marriage in North Carolina, why do we need to amend the Constitution?
I don't know. My honest opinion is that the Amendment is on the ballot as an act of legislative pandering, but that's beyond the scope of a legal analysis.
So if marriage is already defined as a union between one man and one woman, does Amendment One do anything else?
Why yes it does. I'm glad you asked.
Self-declared and contractual domestic partnerships would become unlawful.
Despite the existing statutory definition of marriage as between a "male and female person", a number of same sex (and opposite sex) couples have done everything they can to create a relationship which gives them, to the extent possible, the benefits of marriage. I will interview such a couple later in this series of posts.
This is done through wills, grants of power of attorney for health care and financial decisionmaking, and, where employers offer it, declarations of domestic partner status granting access to employer-provided health and insurance. A number of local governments in this State offer such benefits to declared domestic partners of their employees, including the County in which I reside. If the Amendment passes, these benefits will become unlawful immediately.
This is because the Amendment goes much further than existing law. It states that the only "domestic legal union" that shall be "valid or recognized" in North Carolina is an opposite sex marriage. The term, "domestic legal union" is not defined, but it surely includes within its sweep the arrangement discussed above. Such unions will not be "recognized" (meaning to have their existence acknowledged) by any court.
This means that, for domestic partners of employees of Carrboro, Chapel Hill, Durham County, the city of Durham, Greensboro, Mecklenburg County, and Orange County, a list that includes two of the State's five largest counties, and two of its five largest cities, all such benefits will end immediately. They may also end, or become much more difficult to enforce, for domestic partners of private employers, many of which offer such benefits as an employee recruitment tool.
I'll discuss this further below.
I thought the Amendment doesn't prohibit private contracts?
What's a contract?
At its simplest, a contract is a legally enforceable agreement between two parties in which one party agrees to exchange goods or a service for money or other goods or service ("valuable consideration"). If Wimpy promises to Bluto that he will gladly pay five dollars on Tuesday for a hamburger today, that's a contract, which the law will enforce regardless of the fact Wimpy and Bluto are enjoying a romantic relationship, whether or not this Amendment becomes law.
However, a court will not enforce a contract in which what's promised is found to be against the public policy of the State of North Carolina. Such a contract is void. The classic example of a contract void as against public policy is a contract to commit murder for hire, but there are many other such exceptions in North Carolina, such as a contract to repair a home entered by an unlicensed general contractor, or an agreement to waive liability for negligence against a builder.
If this amendment passes, expect lawyers to argue that all sorts of contracts which now pass without objection are void as against public policy, because they're founded on an unlawful domestic union. I'll expand on this below.
Now, what isn't a contract?
A last will and testament is not a contract. A will can be revoked at any time, regardless of promises made. If this Amendment passes, any will in which one member of a same sex couple devises his or her property to the other will be open to challenge by spurned relatives, who can claim that the will was procured through "undue influence," in other words the love and affection between a couple engaged in a domestic relationship which is constitutionally enshrined as unlawful in North Carolina.
A power of attorney, whether for financial purposes or for health care, is not a contract. State run hospitals may be required to disregard a health care power of attorney where power is held by a domestic partner. Suppose Wimpy suffers a massive stroke and goes into a coma. Wimpy has told his domestic partner Bluto that he does not wish to be fed through a tube, unable to enjoy hamburgers as a living vegetable. Wimpy has even given Bluto a power of attorney over all health care decisions, so strongly does he feel about this. If Wimpy is hospitalized at the University of North Carolina hospitals (a state facility), Wimpy's niece Olive, his only lawful relation, will now have a strong case to challenge Bluto's decision on the grounds that the law does not "recognize" a power of attorney procured through a domestic partnership, which is unlawful in the State of North Carolina.
Of course, even facially valid contracts, as discussed above, will be subject to challenge as against public policy, or procured through undue influence, if this Amendment passes.
Okay. The Amendment jeopardizes estate planning and health care decisionmaking for unmarried couples. Does it have any other effects?
Oh yes it does.
Any adoption, or custody arrangement, where the child enters a same sex household is automatically suspect.
North Carolina, like every other State, gives social workers and courts the power to remove a child from a household when it is deemed to be "in the best interests of the child". While it is biologically impossible for same sex couples to produce children, such couples adopt children frequently, particularly in States where they can marry.
If Amendment One is ratified, it will become much easier for police or social workers to justify seizing such children, in the "best interests" of the child, even if the child was adopted in another State by a same sex couple lawfully married in that State, because such relationships are against the public policy of North Carolina. Likewise, it will be easier for District Court Judges to justify such seizures. An appellate court may reverse such a decision, but when was the last time you paid for an appeal to the Supreme Court of North Carolina? It isn't cheap.
If Amendment One passes, my advice to same sex couples married in other states, particularly where children are involved, would be never to bring those children to North Carolina. North Carolina has lovely mountains and beaches, but so does Maryland and so do many others states which don't enshrine discrimination in their Constitutions.
These considerations also apply to custody and visitation for biological parents of children who later enter same sex relationships (it happens). It will be much more difficult for those parents to establish custody or gain visitation rights in North Carolina, no matter how good they are as parents.
You're in good hands. But maybe you shouldn't drive a car in North Carolina.
Want to know how Amendment One will affect automobile insurance in North Carolina? Vote for it and see.
The typical automobile liability, or uninsured / underinsured motorist, insurance policy, provides coverage to "You", the policyholder, or "any family member", meaning your child or spouse. Under North Carolina law "foreign" insurance policies (meaning those written in other states) are construed under the law of the State where the policy was written. So if one spouse (in a same sex marriage) is driving from Massachusetts to Florida and has an accident in North Carolina on Interstate 95, he or she will be covered under his or her spouse's Massachusetts auto insurance policy, written in a State where same sex marriage is the law of the land.
But will North Carolina courts enforce an out-of-state contract which violates North Carolina's Constitution and public policy? Can they "recognize" a contract founded on a marriage which the State Constitution says is unlawful? Partners in same sex marriages are not "family members" in North Carolina.
Again, if Amendment One passes, I wouldn't advise anyone married lawfully in a same sex marriage from another state to test that question. Don't drive a car in North Carolina.
I'm not gay, but I'm living with an opposite sex partner. Will Amendment One affect me?
I've limited my discussion here to same sex couples, because I believe the sole reason this Amendment is on the ballot is to enshrine bigotry against gay and lesbian people in our Constitution. The short answer is "yes," it will affect you. For a much longer answer, please see this paper by Professor Maxine Eichner of the University of North Carolina School of Law. I'll add that I am deeply indebted to Professor Eichner for her writing on the Amendment, some of which has guided me as I wrote this post.
What is to be done?
In evaluating any law, one should examine its benefits in light of its drawbacks. In this post, I've attempted to highlight certain and potential drawbacks of Amendment One. Personally, I foresee no benefit whatsoever from the Amendment, but I recognize that many have religious reasons (the only beliefs I would concede are even potentially valid) for supporting marriage restrictions.
Even those voters should consider the harm this Amendment will do, before deciding whether to vote for or against.
Even if I oppose same sex marriage, do I support stripping health insurance away from same sex partners of city and county employees, who bargained with their employers for those benefits?
Even if I oppose same sex marriage, do I support overturning legally valid wills?
Even if I oppose same sex marriage, do I want to interfere in my fellow citizens' personal health care decisions?
Even if I oppose same sex marriage, do I support taking children out of loving families, and giving them to the State?
Even if I oppose same sex marriage, do I want to increase the number of uninsured motorists driving on the highways of my State?
All of these are certain or potential consequences of Amendment One. I suspect that even most supporters of the Amendment don't want them to come to pass. Supporters of the Amendment should consider such consequences strongly, before deciding to vote in favor of what I submit is a most poorly thought out law.
I have further things to say about Amendment One. In the near future, I will post an interview with a same sex couple who will definitely be affected, for the worse, by passage of the law. I'll follow that with some thoughts about what opponents of the Amendment can do to oppose the Amendment politically between now and May 8.