North Carolina Voter To-Do List

North Carolina voters may want to consider resting up a bit – they have their work cut out for them this year.

Not only will they select a new governor and decide on a U.S. president, the future of marriage itself will rest upon their collective shoulders, as well.

At first glance, the referendum known as Amendment 1 would appear to do little more than take an existing state law restricting marriage to one man and one woman and write it into the North Carolina State Constitution. Doing so, the measure’s supporters say, would protect the 16-year-old marriage statute from judges who might overturn the law with a single ruling, opening the door to gay marriage in the state.

Constitutional amendments require a super-majority of the House and Senate to place the referendum on the statewide ballot, where a simple majority of the voters is enough to ratify it into law. The ballot will ask voters to choose either for or against the amendment.

Opponents claim the broadly worded law will have consequences reaching far beyond the stated intent of its supporters, tearing asunder the rights of opposite-sex and same-sex couples alike, while wreaking havoc in family courts and undermining domestic violence laws along the way.

There is little debate that the amendment would almost certainly block any future legislation that might allow civil unions for same-sex couples in North Carolina. The state does not currently recognize civil unions or common-law marriages, and Amendment 1 was engineered to block their creation, according to one of the primary sponsors of the bill, passed last September, that put the referendum on the May 12 ballot.

That sponsor, N.C. Sen. Dan Soucek (R-Watauga), said the state law was too vulnerable – and the institution of marriage too valuable – to be left open to the whims of “rogue” judges.

“When you have the elected representatives of the people saying one thing, and then judges overturning something, I think that’s when a lot of people look and say, ‘The people of North Carolina want to decide what this is, not a judge or a group of judges,’” Soucek said.

If history is any judge at all, there is truth on both sides of the issue. The most visible evidence for Soucek’s concern can be found in California. Voters there passed Proposition 22 in 2000, creating a statute defining marriage as strictly between a man and a woman.

Eight years later, the state’s Supreme Court struck down the law as contrary to the state’s constitution. In November that same year, voters struck back, passing Proposition 8 by a four-point margin and enshrining the exact wording of Proposition 22, which defined marriage as “a contract between a man and a woman,” into the California Constitution.

A U.S. District judge knocked California’s marriage amendment down again less than two years later, in a ruling citing the Equal Protection clauses of the United States Constitution. An appeal of the District Court injunction is pending.

Even as it stood, however, California’s Prop 8 confined its language to the definition of marriage, left domestic partnerships – also recognized by California state law – untouched and even grandfathered in any same-sex marriages in existence before the amendment was enacted.

North Carolina’s Amendment 1 goes much further. Critics and supporters alike describe the state’s proposed amendment as among the most broad-sweeping of any currently in existence in any state, and its brief, two-sentence provisions are almost guaranteed to invite a flood of litigation on many fronts:

Amendment 1: 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.

By defining marriage between one man and one woman as the only “domestic legal union” recognizable by the state, Amendment 1 would effectively block any attempt by the General Assembly – short of another constitutional amendment – to legalize civil unions for either same-sex or opposite-sex couples, which, as Soucek said, is exactly what it was intended to do.

Barring the way to civil unions is necessary to prevent what he suspects could be a stealth assault on the institution of marriage.

“Why civil unions?” he wondered. “Is it civil unions because people want to have their liberty and freedom? Or, because it’s a back door to marriage, which constitutionally is not going to be available in North Carolina if this amendment passes?”

The amendment’s second sentence, Soucek said, is intended to reaffirm the rights of private citizens to contract with one another, contracts that he said could provide even same-sex partners with many of the same protections currently available to married couples in the state.

“What marriage does is create an entire umbrella of rights and privileges recognized by society immediately,” he said. “It’s something they would have to do piece by piece– you might use the term ‘a’ la carte’ – so it would be a little bit more difficult. But, with a little bit of work (they could have the same rights). I still think that would be healthier position, because so much of society for thousands and thousands of years have looked at marriage as a fundamental building block of society, of raising children, and so there are a lot of rights and privileges inside of that.”

Dr. Maxine Eichner, a professor at the University of North Carolina School of Law in Chapel Hill, said Soucek’s assessment was off the mark, though the amendment could mean a boon to lawyers.

“It’s certainly not the case that either same-sex couples or opposite-sex couples, even if they went to lawyers, could accomplish anything near to the range of rights and privileges that they’re afforded by the state with respect to marriage,” she said. “The vast majority of rights and privileges that come with marriage come from the state rather than from the couple itself. (It would affect) the right to file tax returns, the right to some employer benefits, and oftentimes the access to married student housing if you go to the university.

“In North Carolina, if your spouse is killed you have a right to file a wrongful death suit. Unmarried couples can’t do that. In North Carolina, if you become incompetent, your spouse is the first person allowed to be your guardian and testator of your property.”

Soucek agreed that public employees in unmarried but committed relationships who currently enjoy benefits offered by some public entities in the state – Appalachian State University and the cities of Asheville and Chapel Hill among them – would lose those benefits under the new law. But he argued that private employers would remain free to offer any benefits they saw fit.

“If same-sex marriage was considered a fundamental right, then it would force organizations who are morally opposed to it to offer it,” he said. “So, on one hand what we’re doing is, we’re allowing companies and individuals to actually choose what they want to do rather than the government forcing them.”

Eichner, whose specialties include family law, has co-authored a report outlining the possible impact of Amendment 1 on the state’s legal system. The report cites problems in other states where marriage amendments have wrought difficulties that lawmakers either overlooked or ignored.

In Ohio, a 2004 amendment sowed a slew of challenges to the state’s domestic violence laws. Before the issue was resolved by the Ohio Supreme Court nearly three years later, lower courts had dismissed or overturned more than two dozen indictments and convictions based on claims that the state’s constitution forbid granting such protections to those in relationships outside of marriage.

Should they arise, North Carolina may have a more difficult time resolving such issues, Eichner said, given that its amendment is more broadly worded than Ohio’s.

“If a North Carolina court followed the Ohio Supreme Court’s rationale, it would find that our existing domestic violence protections violated our amendment,” reads Eichner’s report. “This would mean not only that North Carolina’s civil remedies for domestic violence … could no longer be accessed by victims who had not married their abusers, it would also mean that criminal remedies that rely on the same statutory definitions would be invalidated.”

And what of such things as hospital visitation, end of life directives, wills and the right to determine the disposition of the bodies of loved ones who have died – basic rights and privileges the state affords to married couples by default?

Jeanette Doran, executive director and general counsel for the North Carolina Institute for Constitutional Law, a non-partisan group in Raleigh, said the amendment allows for remedies in such cases for unmarried couples.

“There is not a serious concern about that, because the second sentence (of the amendment) makes it clear that what we’re talking about is what government can or cannot do, or what government does or does not recognize,” she said.

“People would be able to not only draw up a power of attorney or a health care power of attorney or health care surrogacy, they could also leave their property to whomever they wish. None of these would be in any way impaired by the amendment.”

Eichner said legal precedent and human nature present a far more clouded view of the issue, though. “If you’re a family member, or you’re married, you’ll automatically be on the priority list,” she explained.

North Carolina law stipulates such priority lists, which name family members – beginning with the spouse and progressing as necessary to adult children, parents, siblings and so on – as guardians and testators in cases of incapacitation or death.

So-called domestic partners have no place on that list, so unmarried couples must have their legal ducks in a row in advance of an emergency or face being shut out of the process.

“It could be the case that the couple could have those papers in advance,” Eichner said. “Most couples don’t do that.”

While some states have moved to fix that by adding domestic partners to their priority lists, “That won’t happen if the amendment passes,” Eichner said. “The state will never be able to do that.”

Even couples who have executed the proper paperwork may find them invalidated by the new law, Eichner said.