A helluva mess

A helluva mess

- in Weekly Briefing

What North Carolina courts have to look forward to if Amendment One becomes law

For months now, prominent and well-respected lawyers and law professors of both political parties have been raising questions about the impact that Amendment One will have on the North Carolina courts and law enforcement systems.

You don’t have to be a legal expert or have stayed in a Holiday Inn Express to understand why. It comes down to four little words: “only domestic legal union.”

Amendment One says that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State….”

To the best of the knowledge of experts, this is not a phrase that we’ve ever had in North Carolina law before or one that our state courts have ever interpreted before. It only stands to reason, therefore, that it might just cause a little confusion and have some important consequences beyond just banning same sex marriage.

Here are just a couple of the potential problem areas:

Domestic violence protections

Many experts worry that the broad language of the amendment will wreak havoc in the state’s domestic violence protection laws. Here’s why: If the amendment becomes law, a lawyer representing a person accused of domestic violence could quite plausibly argue that the state’s Domestic Violence Protection Order law (G.S. 50B) is unconstitutional in that it offers the possibility of state protection (i.e. “recognition”) for unmarried and same sex couples.

Do you see the potential conflict? How can a state law confer protection on a person in an unmarried domestic relationship (opposite sex or same sex) if the state constitution says that traditional marriage is the “only domestic legal union that shall be valid or recognized in this State”?

“Oh this is making a mountain out of a molehill” say the defenders of the Amendment, “this will never happen.” A group of pro-Amendment lawyers (including Senate President Pro Tem Phil Berger’s son and an obscure far right gubernatorial candidate who favors a “personhood amendment” to the Constitution) even convened a last minute press conference this week at the General Assembly to make this argument. One speaker even accused the lawyers and law professors raising the concern of “lying.”

But as reporters and observers noted, the position of the pro-Amendment lawyers essentially boiled down to this: “Trust us, this won’t happen.”

The problem, of course, is that such situation did arise in Ohio a few years back when that state adopted an even less assertive constitutional amendment. And while the Ohio Supreme Court ultimately did settle the matter by upholding domestic violence laws, it wasn’t until three years had passed and dozens of abusers had escaped sanction.

Would the same thing happen here? No one knows for sure. But to argue that none of the thousands of intelligent attorneys in North Carolina will ever make such an obvious argument on behalf of their clients and that none of the state’s hundreds of judges will ever find any merit in it is preposterous. To the contrary, it’s almost a sure thing that something like this will happen. An amendment of such breadth cries out for court interpretations.

And, of course, if people are bringing lawsuits and filing motions based on Amendment One, it won’t be a development that’s likely to lead to an expansion of individual or human rights. To the contrary, it will be because they (or some public official somewhere) think that Amendment One restricts the protections available to one or more groups of North Carolinians. In other words, the absolute best case scenario is that the Amendment will do only limited damage.

Domestic partner benefits

Another subject area in which we are certain to see all sorts of expensive and controversial litigation surrounding the amendment concerns the issue of domestic partner rights and benefits.

Right now, for instance, seven cities and towns in North Carolina (all subdivisions of the State, of course) allow their employees who are unmarried to sign up for domestic partnership benefits like family health insurance coverage. Five of the seven allow it for same-sex couples. This will almost certainly be unlawful if the amendment is approved.

Even if one can concoct an argument that the amendment would not prevent such arrangements, the notion that this will be resolved without lots of costly and confusing litigation is simply ridiculous.

Similar issues are certain to arise around matters like child custody and even hospital visitation rights. If “traditional” marriage is the “only domestic legal union” that can be recognized by the state of North Carolina, how long will it be before some disgruntled in-laws or other officious meddlers decide to bring suit against public (or publicly-funded) hospitals that permit same sex partners who want to visit their loved ones?

And as for family and child custody law? Good grief! All one can do is shake one’s head when contemplating the impact of the amendment on this already supercharged, super-heated area of law. To think that the Amendment won’t be dragged into this subject – an area that already overflows with controversy, vitriol and parties attempting to find any means at their disposal to gain the upper hand against their former partners – is simply laughable.

Indeed, a North Carolina family court judge told me in a private conversation last week that he is preparing himself for “a flood” of such cases.

The legislature’s lack of debate

Of course, it didn’t have to be this way. Even if supporters were bent on passing an amendment, they didn’t have to advance such an extreme version that raises so many questions. Unfortunately, rather than allowing a full and fair debate in the General Assembly that provided ample time for constitutional law experts to explore the complications and nuances of such a momentous change, they opted to ram the measure through without even allowing public testimony.

We are all now witness to the result. As the New York Times editorial page noted this past Sunday:

“In their zeal, lawmakers got careless with the wording of the measure, known as Amendment One. It would constitutionally prohibit recognition not just of same-sex marriages, but of other legal arrangements like civil unions and domestic partnerships. That could harm all unmarried couples, imperiling some children’s health insurance benefits, along with child custody arrangements and safeguards against domestic violence.”

Going forward

Will these concerns be enough to dissuade voters from approving the amendment? One might think so given the overwhelming unpopularity with voters of many of these likely results. Unfortunately, if polls are to be believed, many North Carolinians have yet to connect the dots – telling pollsters that they support the amendment even as they oppose what it would do.

The bottom line at this point appears to be this: On the question of same sex marriage, North Carolinians are either in for a tumultuous week of political change or several more years of it.

About the author

Rob Schofield, Director of NC Policy Watch, has three decades of experience as a lawyer, lobbyist, writer and commentator. At Policy Watch, Rob writes and edits daily online commentaries and handles numerous public speaking and electronic media appearances. He also delivers a radio commentary that’s broadcast weekdays on WRAL-FM and WCHL and hosts News and Views, a weekly radio news magazine that airs on multiple stations across North Carolina.
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