Q&A: The Amendment

Voters will decide whether the state should define marriage in its constitution on May 8, but many have questions before they vote.

Posted Updated
Mark Binker

North Carolina voters will decide whether to add a definition of marriage to the state's constitution in the May 8 primary. Early voting is already under way. Backers and opponents of the amendment have raised a number of questions about why the measure is needed and what it will do if enacted. Here's a look at some of those questions and claims as answers to frequently asked questions about the amendment.  

Opponents of the amendment have tended to use "Amendment 1," if not more derogatory titles such as "the discrimination amendment." They contend the amendment has little to do with marriage.

Backers of the amendment have typically called it the "Marriage Amendment," because that moniker captures what they feel the amendment is all about: defending marriage.

Neither of those titles are official. 

On the ballot, voters will actually see the title "Constitutional Amendment." It is the only amendment on the ballot this primary. The actual language voters will see reads: "Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state." Voters will then get to choose whether they are "for" or "against."

You may still register to vote if you show up in person during the early-voting period, which ends May 5. Click here to learn more about in-person, absentee early voting. You must already to be registered to vote in order to vote on primary day, May 8.

North Carolina law allows for 17-year-olds who will turn 18 by the November general election to vote in the primaries. However, the amendment decision is an actual election, not a primary. Therefore, a voter must be 18 by May 8 in order to vote on the amendment. Those who are 17 and voting in the primary should get a ballot without the amendment question. 

Defining marriage as only between one man and one woman has long been a priority of social conservatives. Interest intensified in 2003, when a Massachusetts court struck down a prohibition on same sex marriage there. In May of 2004, Massachusetts began issuing marriage licenses to gay and lesbian couples. 

Also in 2004, North Carolina lawmakers introduced resolutions calling for a state constitutional amendment that would define marriage as solely between one man and one woman. At the time, both the House and the Senate were controlled by Democrats, who kept the bills bottled up in committee. 

Similar bills introduced in subsequent General Assemblies were also stymied. Only once, in 2007, did a bill emerge from committee, at which point then-House Speaker Joe Hackney, D-Orange, used his powers to stop its progress. Democratic legislative leaders never allowed a floor vote on the measures.

In 2011, Republicans took control of the state House and Senate.  Social conservatives finally pushed through the bill during a special legislative session in September of 2011. It was the only one of several amendment measures lawmakers had considered during the year to be placed on the ballot.

Gov. Bev Perdue, a Democrat, had no say in the matter. Constitutional amendments are not subject to gubernatorial vetoes. 

"In our state, activists are slowly chipping away at laws that protect marriage and the family through incremental changes," Sen. Jim Forrester, R-Gaston, argued on the Senate floor. Forrester, who died in October, was a long-time proponent of the bill and warned that without it state courts could overturn North Carolina's long-standing laws defining marriage.

"North Carolina does have strong marriage laws, but they're increasingly vulnerable to legal challenges and revisions by the court," he said. 

Generally, the amendment has had its strongest support among Republicans and found its major opponents among Democrats, but that is not always the case.

Rep. Jim Crawford, D-Granville, sponsored similar amendment bills in prior General Assemblies despite widespread opposition in his party.

"I think it discriminates against the gay community to a degree," Crawford told producers of the WRAL documentary "The Amendment." Crawford voted for the bill that put the amendment on the ballot this year. 

On the flip side, many high-profile Republicans have spoken out against the measure. For example, former Charlotte mayor and Republican gubernatorial candidate Richard Vinroot filmed a web video to encourage voters to reject the amendment. U.S. Rep. Renee Elmers, a conservative Republican, also has said she'll vote against the measure. 

An ad by Vote for Marriage NC, the lead group backing the amendment, relies heavily on images of the Bible and religious references.

"It's what God created to give children a mother and a father," a female voice says during the ad. 

But as with Republicans and Democrats, different religious groups and denominations have split on this question. There are outspoken faith leaders on both sides of the issue.  

The language that would be put into the constitution is as follows:

"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 debate over the amendment centers on what rights and relationships the amendment could affect other than the ability to get married. Proponents of the measure have argued that its effects will be limited to marriage rights. Opponents have focused on possible impacts on existing rights for same-sex couples and unmarried couples of all genders.

"We did extensive research into where the voters of North Carolina are and what issues resonate with them," said Jeremy Kennedy, campaign manager for the Coalition to Protect NC Families, the lead group fighting the amendment. "It is the unintended consequences that affect everyone that are what resonate with voters the most." 

Amendment backers say that strategy is misleading. 

"I would say they are deceptive," said Tami Fitzgerald, chairwoman of the pro-amendment Vote for Marriage NC. "They're trying to convince people that protecting marriage as between one man and one woman is not the right thing to do." 

North Carolina law has referred to marriages between one man and one woman since at least the 1800s. In 1996, a court case in Hawaii spurred North Carolina lawmakers to clarify those definitions and make clear North Carolina would not recognize same sex marriages from other states. As enacted, that 1996 North Carolina law reads: "Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina."

It is that law that proponents say they are protecting from attacks in the court. However, both sides of the debate agree the amendment would keep the state from creating a separate civil union statute.

That prohibition on future lawmakers may play into the politics of the debate.

A recent Elon University Poll found 61.2 percent of those surveyed would oppose a constitutional amendment banning "same sex marriages, domestic partnerships or civil unions." And a March WRAL/Survey USA Poll found 57 percent of likely voters would want to allow some sort of recognition for same sex couples. 

Fitzgerald says the polling she has seen shows people favor defining marriage as between a man and a woman. And, she points out, there is no civil union law in the state right now.

"They're not recognized now and won't be after the amendment passes," she said. "It's just not an option for voters on this ballot."

As for who may be affected by amendment, the 2010 census found there were 27,250 same-sex couples who said they were in domestic partnerships across North Carolina. That's up from 11,052 ten years earlier. A separate census figure says there are 222,800 unmarried couples – the majority of those heterosexual – living together in North Carolina. Census figures put the state's total population at over 9.6 million people. Amendment opponents said that all of those unmarried couples stand to lose certain protections if the amendment passes.  

As of 2012, 30 states ban same-sex marriage in their constitution, including all southern states except North Carolina. Either court action or acts of the legislature have already legalized same-sex marriage in five states: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York. Same sex marriage will become legal in Washington State June 7 and in Maryland on Jan. 1, 2013. It is also legal in the District of Columbia.

Opponents have complained that North Carolina's language is much more restrictive than what is used in other states. However, the proposed amendment has language similar to constitutions in neighboring states. For example, South Carolina's constitution includes "A marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized in this State." And in Virginia, the law says "only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions."

Suzanne Reynolds, associate dean at the Wake Forest School University School of Law, said that both South Carolina and Virginia have additional language in their marriage language that limits their effects.

North Carolina's proposed amendment, she said, "would be the most far-reaching amendment of all, as it would prohibit the state from treating as valid any unmarried unions."

North Carolina's amendment tracks most closely with Idaho, which says only, "A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state."

The authors of a Campbell University School of Law white paper on the North Carolina amendment argue that other states like Idaho have seen little by way of litigation over their amendments.

"North Carolina is right in line with what the majority of other states have done when they passed marriage amendments," Fitzgerald said.

This has been one of the most hard-fought questions in the amendment battle. Amendment opponents point to Ohio's experience, where, in 2004, voters passed a same-sex ban similar to the one before North Carolina voters.

Shortly after the amendment passed, defense attorneys began raising it in domestic violence cases where the victims were not married to their abusers. Different courts ruled on the matter differently across the state.

“Your rights and the level of protection you enjoyed depended on where you happened to live," said Michael Smalz, a lawyer with the Ohio Poverty Law Center in Columbus who specializes in domestic violence law. 

"The vast majority of these cases had nothing to do with same-sex couples," Smalz said. "The main impact was felt by generally female victims."

Ohio's state Supreme Court settled the issue for the most part in 2007, according to Smalz and others. With a few exceptions "in a couple rogue counties," Smalz said, domestic violence protections are once again uniform across the state.  

In North Carolina, law professors have split on this question, although more have made the case publicly that there could be some impact on the state's domestic violence laws.

"The proposed Amendment ... risks stripping away important protections for the already-vulnerable victims of domestic violence, and could create chaos for the numerous state workers who have sworn a duty to protect the peace," reads a white paper critical of the amendment that was written by a group of UNC School of Law professors.

But a competing white paper from faculty members at Campbell University School of Law critiques the UNC paper, pointing to the 2007 Ohio Supreme Court decision. 

"The North Carolina amendment only bars domestic legal unions, not every relationship between unmarried couples," the Campbell group wrote. (The professors were not writing on behalf of the law school, but all three teach there.) They argued that North Carolina's "domestic violence laws apply to a wide range of persons, including those who are living together, household members, and even couples who are dating, whose status under the laws does not depend upon having a marital or marital-like union." 

All of that focuses on the issuance of new domestic violence orders. But the Protect All NC Families ad cited in the question deals with someone who has an existing civil order losing their protection.

Legal experts say that the effect would not be immediate, but that in some of the more troubling scenarios subjects of existing domestic violence restraining orders could ask to have them waived on constitutional grounds. 

"When it comes to a domestic violence protective order, 'probably' doesn't get it done," said Alex Miller, a lobbyist working with amendment opponents. 

He points to the Ohio experience where defense attorneys challenged not only the imposition of new orders but the enforcement of existing orders. And he pointed to California, where same-sex couples who were married by municipal officials saw those marriages retroactively invalidated by Proposition 8.

Fitzgerald argues that North Carolina's domestic violence laws are written more broadly than Ohio's and calls concerns about effects on domestic violence laws "far-fetched."

That television spot references a City of Durham employee, Libby, who covers her partner, Melissa, and five-year-old daughter under the city's health insurance.

It does seem to be the case that the handful of cities that offer domestic partner benefits would have to revoke them if the amendment passes. Those local governments include Greensboro, Asheville and Chapel Hill, as well as Mecklenburg County. 

In the case of Libby's family, because of how North Carolina's adoption laws work, her child would have to be covered under insurance from Melissa's work. That would increase the family's monthly medical costs by $700 per month, according to Jeremy Kennedy of the Coalition to Protect NC Families, which produced the spot. 

In news conferences, Rep. Paul "Skip" Stam, R-Wake, has argued that cities and counties could offer benefits through a system that doesn't specify domestic partners. Under that arrangement, those covered by a health plan would have to meet certain requirements such as living with the employee and sharing household expenses. 

It's worth noting that in 2011, Michigan lawmakers passed and Gov. Rick Snyder signed a bill that outlawed such arrangements that worked around Michigan's same-sex marriage ban. 

Amendment opponents have also raised fears that companies who offer private domestic partner benefits could be affected. 

"It could make some corporations and some insurance companies worried about going against the state law," Kennedy said. Business leaders raised this concern in the fall.

The second sentence of the amendment, which says it would not "prohibit a private party from entering into contracts with another private party," was designed to take care of such concerns.

A spokeswoman for the state Department of Insurance, which helps regulate the industry, says her agency has not studied the question.

"We don't think the amendment has any bearing on how do business, regardless of the outcome," said Lew Boreman, a spokesman for Blue Cross and Blue Shield of North Carolina. 

In general, insurers say that businesses chose who their employees may cover on their health plans. 

A three-member panel that drafted the official explanations used by local boards of elections was not definite on this point. The three-member group, which included the Secretary of State and the Attorney General, wrote the "amendment also says that private parties may still enter into contracts creating rights enforceable against each other. This means that unmarried persons, businesses and other private parties may be able to enter into agreements establishing personal rights, responsibilities or benefits as to each other. The courts will decide the extent to which such contracts can be enforced."

Those backing the amendment have challenged the veracity of both Coalition to Protect NC Families ads, including the claims that children could lose medical insurance.

"They are trying desperately to find something besides marriage to talk about," Fitzgerald said. 

This is another place where legal opinions differ. The UNC white paper, whose lead author is Maxine Eichner, identifies and number of "possible impacts" that depend on how the amendment is interpreted. Among those potential impacts are:

  • Custody and visitation rights for unmarried parents could be curtailed. 
  • Non-married partners may see rights revolving around hospital visitation and emergency medical decision-making curtailed. 
  • Non-married partners could lose some standing to make decisions after a partner has died and estate planning could be more difficult for non-married couples. 

Amendment opponents have argued that these issues would come whether the couple in question was of the same or different sexes.

The Campbell white paper, published by Lynn Buzzard and two colleagues, say those outcomes are unlikely and would require the state's courts to make findings that ran counter to common sense.

"North Carolina courts, however, do not interpret the meaning of legal texts in ways that lead to nonsensical results," the Campbell authors wrote. 

Amendment backers say proponents are trying to make the the amendment look as far-reaching as possible in order to push voters to side against it. Amendment opponents say the amendment is so vaguely worded that nobody can be sure what the ultimate effects will be. 

While the courts may ultimately have to sort out this issue, it's worth noting that backers of other same-sex marriage language have spoken out against North Carolina's amendment.

David Blankenhorn of the Institute for American Values testified on behalf of California's Proposition 8. However, he co-authored a Op-Ed piece in the The News & Observer calling this state's amendment "mighty cold" and encouraging people to vote against it.

"If you disdain gay and lesbian persons, and don’t care whether they and their families remain permanently outside of the protection of our laws, such a policy might be your cup of tea," Blankenhorn wrote. 

The state panel charged with explaining the amendment could not offer a definite answer on these issues either. They wrote, "There is debate among legal experts about how this proposed constitutional amendment may impact North Carolina law as it relates to unmarried couples of same or opposite sex and same-sex couples legally married in another state, particularly in regard to employment-related benefits for domestic partners; domestic violence laws; child custody and visitation rights; and end-of-life arrangements. The courts will ultimately make those decisions." 

Court cases in Iowa, Massachusetts, Connecticut and California did in fact lead to those states allowing for some sort of marriage for same-sex couples. In a 2009 ruling, the Iowa Supreme Court found that a state law banning same-sex marriage clashed with equal-protection language in the state constitution. 

If passed, the North Carolina amendment would give the state's marriage law shelter from challenges in state courts. Proponents of the amendment point to a 2011 lawsuit brought in Guilford County by Jeff Thigpen, the Register of Deeds, and others. That suit questions the state's role in sanctioning marriage and is the type of suit social conservatives have feared. 

"It just makes the point that our marriage statutes are vulnerable," Fitzgerald said.

Amendment opponents disagree, saying that the Thigpen lawsuit doesn't deal squarely with the state sanctioning of same-sex marriages.

"It really is a whole other issue," Kennedy said. 

What is certain is that if the amendment passes, future General Assemblies would be prohibited from creating a civil unions statute or allowing same-sex marriage without first dealing with the state constitution.

But amendment proponents acknowledge that the state constitution offers limited protection in federal courts. State laws – including state constitutions – that are found to conflict with federal laws are not valid. The most likely case to be brought to the national level deals with California's Proposition 8. The U.S. 9th Circuit Court of Appeals ruled this year that the law banning same sex marriage is unconstitutional. It is likely to be appealed to the U.S. Supreme Court, where a ruling could affect North Carolina.   

Update: Answering some reader questions.

Since this story first published, we have received some additional questions. Here are some we've been able to answer.

Yes. The entire amendment doesn't have to appear on the ballot. Lawmakers set the ballot language as part of the resolution that sent the measure to voters. 

The short answer is, "it depends." If the litigation in question is a civil lawsuit to which the state isn't a party -- for example, if a company refuses to pay benefits based on this amendment -- then it's unlikely the state would have to pay anything.

However, there could be additional costs for the courts if problems revolving around domestic violence comes about. And if the state has to defend the measure in a federal court, there would certainly be costs involved there as well.

"There is no research to suggest that same gender families are any less successful in raising children who are emotionally and behaviorally competent," said Dr. Peter Morris, a pediatrician and past president of the North Carolina Pediatric Society.

No, the FMLA is a federal law and therefore wouldn't be affected by the amendment, said UNC Law Professor Holning Lau.

"Note, however, that a lot of people misunderstand the FMLA," Lau cautioned. "It's not entirely correct to say that 'domestic partners are covered under FMLA.' Under the FMLA, domestic partners can take time off to care for each other's children. The FMLA does not, however, give domestic partners the right to take time off to care for each other. It's counter-intuitive, but that's the law."

Constitutional amendments pass with a simple majority. That means the amendment needs only one more "yes" vote than the number of "no" votes cast. 

Outstanding questions

We're continuing to work on questions regarding the amendment. Please send your suggestions for other questions we should look at to mbinker@wral.com 


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