US Supreme Court cases unlikely to impact NC marriage amendment

Posted December 14, 2012

Gay marriage debate, same-sex marriage

— Melissa Hodges' daughter didn't lose her health insurance after May's marriage amendment vote, but there was a scramble and some days of anxiety.

Hodges and her wife, Libby,  were married in Canada in 2006, and their family were some of the faces used in the spring campaign against North Carolina's constitution amendment banning same-sex marriage. That amendment passed with more than 60 percent of the vote.

The Hodgeses worried that their 5-year-old, who is now in kindergarten and was featured in a television ad against the amendment, could lose her health coverage due to legal uncertainty created by the amendment. 

As the U.S. Supreme Court takes up two cases related to same-sex marriage, Hodges says her family still faces a good deal of uncertainty about legal arrangements heterosexual married couples take for granted. Legal experts say its unlikely that the court's anticipated decisions will do much to clarify North Carolina's legal situation.

"It's frustrating," said Hodges, who recounted how the City of Durham removed her daughter from Libby's health insurance policy when the couple switched Melissa to health insurance offered by her own employer. That situation is now straightened out, but Hodges said she worries they're one legal opinion away from having to scramble to find a new insurance arrangement for their daughter.

Gay couples in North Carolina weren't exactly on the firmest of legal footing before voters passed the marriage amendment in May. A state law already prohibited gay marriage. The constitutional amendment is drawn somewhat broader, prohibiting any recognition of "domestic legal unions" other than marriage between a man and a woman.

During the campaign, opponents of the amendment argued that it would spark a series of unintended consequences. Families like the Hodgeses would have problems with their insurance, unmarried domestic violence victims could lose legal protections and courts could find it difficult to settle separations of gay couples legally married in other states who move here.

Thus far, very little of that fallout has come about. 

"Six months is just way too short a period of time to sort out constitutional questions," said Maxine Eichner, a professor at the University of North Carolina School of Law who was one of the leading legal voices arguing against the amendment. State courts will have to grapple with the meaning of the amendment before a federal challenge to the law can be considered, she said.

Rep. Paul "Skip" Stam, a lawmaker and lawyer who pushed for the amendment, disagrees with Eichner on the potential consequences and harms of the amendment. But he agrees that there has been little practical effect so far.

'It was very much worthwhile," Stam said. "The principle problem at which it was directed was there were numerous state courts in other states that found a right for same-sex marriage in their constitutions. This stops that for North Carolina."

"And of course, I do believe it does stop cities and counties and the state from providing benefits on the basis of a purported marriage that is not defined in the constitution," Stam said.

Even that seems to have hit an uneasy status quo. Cities like Winston-Salem that were considering offering benefits backed off in the aftermath of the amendment. Mecklenburg County, which offered benefits to same-sex couples, still does despite the objection of at least one county commissioner. Attorney General Roy Cooper has been asked for an opinion about the programs, but thus far has not issued legal direction to the cities. 

The UNC School of Government did write a memo on the matter, which concluded: the amendment "does not make any changes to the legal authority
of public employers to provide domestic partner benefits to its employees."

The major active lawsuits related to same-sex couples in the state are challenging North Carolina's prohibition against second parent adoption – only one parent in an unmarried couple can legally adopt here – but that case is still working its way through the lower courts. 

As North Carolina grapples with those issue, the U.S. Supreme Court is looking at two marriage-related cases, likely to be heard at the end of March.

The first one, United States v Windsor, challenges a part of the federal Defense of Marriage law, or DOMA. In that case, Edith Windsor lives in New York, a state that recognizes her marriage to her now deceased wife. The suit questions whether the federal government can deny benefits or favorable tax treatment to citizens who live in states that recognize their marriages. Stam, Eichner and others say that, since North Carolina doesn't recognize same-sex marriages, any outcome in the Windsor case is unlikely to have an impact here.

The other case to be examined by the court is Hollingsworth v. Perry, which challenges the validity of California's voter-imposed ban on same-sex marriage. While that seems to be a parallel with North Carolina, the legal arguments and particular facts in the case may limit its impact to California.

"It depends on whether they make broad statements beyond what is necessary to decide the case," Stam said of the court. He and others seem to think that is unlikely. 

"My best guess is the court will rule more narrowly," Eichner said, offering an opinion that echoes other legal scholars.

That would leave North Carolina's law intact, even at a time when other states are pushing the opposite direction on same-sex marriage issues. In November, six months after North Carolina's ballot measure passed, four states either rejected marriage bans or affirmed marriage rights for same-sex couples. 

Whether that marks a sea change in the political and practical direction of the marriage debate is unclear. But it is undisputed that there are states that have created much more favorable legal environments for same-sex couples. It's a disparity Melissa Hodges said she and Libby considered following North Carolina's amendment vote.

"We did. We really did. But it's a big undertaking to move and find jobs for both us," Hodges said.

The couple just completed the training needed to become a foster family, and their daughter is already making friends in school. To boot, most of their family is in Georgia, so moving to a friendly state would mean moving even farther away.

Those practical considerations play out with gay couples throughout the state, said Jen Jones, communications director for Equality North Carolina, one of the groups involved in fighting the amendment. Jones said many gay and lesbian couples will choose to stay so they can push North Carolina to follow the other states that voted in November. And, she said, that's a conversation likely to go on for a while.

"No one has told me that whatever the Supreme Court does, it will be a magic bullet in terms of Amendment One," Jones said, referring to the commonly used name of the amendment. "Amendment One will be on the books for a long time."


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  • mep Dec 14, 2012

    Liberals seem afraid of this. E.J Graff wrote just two weeks ago, "If the court does take up Perry, be afraid, be very afraid. Almost no one believes the Supreme Court is ready to get out ahead of American opinion on the question at Perry's heart: Do same-sex couples have a fundamental right to marry under the U.S. Constitution?"
    Linda Hirschman, author of the triumphalist book on gay rights "Victory," worries at The New Republic that the Olson and Boies strategy "may backfire". Adam Serwer at Mother Jones called the risks of loss "very great," saying Roberts and Kennedy (the two swing justices) are likely to decide that "finding a right of same-sex couples to be free of discrimination amounts to 'forcing' same-sex marriage on everyone else."

  • dwntwnboy Dec 14, 2012

    Crumps- my comment was in response to the "love it or move" type comments. I personally dont care about people making a big deal about coming out and i dont go around waving a rainbow flag. Im glad you agree we are no different than anyone else- thats exactly what we want!! If more people had that attitude, we wouldnt have some of the issues we have now. Live and let live is a wonderful motto.

  • welfarequeen Dec 14, 2012

    If we are not supposed to care that you are gay to begin with why are we supposed to care that you came out? You want to be treated equally, act equally, you are no more important than me or the next guy in the big picture. crumpssister

    Good! So when gay folks kiss in public like straight folks do and have photo's of their loved ones on their desk and talk about their travel plans and their adopted children you can sit back and shut up. After all they are no more important than the next guy, just like you. Get used to it cowgirl

  • Scubagirl Dec 14, 2012

    "Justice....we all know this was the right thing. ncouterbanks69"

    There is NOTHING right OR just about amendment 1. I, like many others, are still waiting for someone to logically state WHY and HOW gay marriage affects them personally. Don't thump your bible w/ an answer, but I sure would like to know.

  • Crumps Br0ther Dec 14, 2012

    We aren't going anywhere buddy- get used to is, the gays are here to stay!!!

    Ok thats all fabulous but let me ask you a question, if you wanted to be treated like everyone else why are we supposed to make a big deal about it when you "come out?" Why should you get a pat on the back for being who you are? And the only reason I ask is whenever a celebrity comes out they make a big to do about it. If we are not supposed to care that you are gay to begin with why are we supposed to care that you came out? You want to be treated equally, act equally, you are no more important than me or the next guy in the big picture.

  • welfarequeen Dec 14, 2012

    History is a much better predictor of the future than people's wants or wishes. That's rational thinking. Agreed ncouterbanks69

    And the Supreme Court is "historically " known for expanding rights as opposed to restricting them, esp. once they have already been granted like the legal marriage in CA. before they were voted down. Get ready!

  • anti-Hans Dec 14, 2012

    If a hetero couple is shacking up, they do NOT get the married tax benefits you speak of. Only married couples get that tax benefit. So stop already.

  • ncouterbanks69 Dec 14, 2012

    History is a much better predictor of the future than people's wants or wishes. That's rational thinking.


  • dwntwnboy Dec 14, 2012

    "Gay and lesbians couples don't have rights in NC"- the only "right" we don't have at the moment is marriage and that too will change. We aren't going anywhere buddy- get used to is, the gays are here to stay!!!

  • dwntwnboy Dec 14, 2012

    "We won, you gays and lesbians lost. Get over it or move on"- NO! I was born here and will stay and fight for what is right and fair. We won't go away, we won't back down and we won't be quiet about it until we get the equality under the law that other legally recognized couples get. No more, no less. If you don't like to hear about gays or gays rights- then YOU move because the fight is just getting started and we won't be quiet about it. Yes, you won ONE vote here. We will work as hard as we can to overturn that as well. You are going to hear about gay rights for LONG LONG time- get over it yourself. We aren't going anywhere and there is NOTHING you can do about it. You have to live around gays, work with gays, have doctors and nurses that are gay, teachers teaching your children that are gay, pilots flying the plane you are in, soldiers protecting you and your rights to try and discriminate that are gay- we are everywhere and aren't going anywhere.