The Roller Coaster of Healing and Christmas Magic

It’s been a while since I posted on this site. After the North Carolina voters passed Amendment One, I’ve been holding onto my seat as if it were the front car in a roller coaster ride.

We’ve seen some excited highs and sharp lows. The depth of Amendment One was overshadowed by the pinnacle of marriage equality from the United States Supreme Court.

Then the legislature of North Carolina saw fit to cast aside anti-discrimination policies by the City of Charlotte with a discriminatory bill known as HB2 that has become a national punching bag.

Then we faced a presidential election where civility seemed to be an afterthought and hate groups felt emboldened to come out of hiding.

Equity continues to be a fight worth having, but the fight intensifies. So let’s stay vigilant.

I want to share with you some fun work I’ve been doing the past two years. Rather than blogging, I’ve been writing books. Fiction. Courtroom dramas, but with a magical twist.

I decided to use the courtroom to address the question on the minds of children and some adults at this time of year: Is Santa real?

Despite the colorful covers (see below), these are books for children of all ages (9 to 99), but only if you have the willingness to try to believe again.

One of my characters says it well. Belief is free. No one can take it away from you. That is true, whether you believe in Santa Claus, or something else more important, like your religion, your family, those less fortunate, diversity and equity. Did I say diversity and equity? Yes, I did.

One of my reviewers called my first book – The Christmas Heist – a cross between Miracle on 34th Street and My Cousin Vinny. I tried to carry the humor and magic into the second book.

If you want something to make you feel good this holiday season, consider giving my books a read.

You can find them on Amazon in print or eBook, or at the following book stores: Park Road Books in Charlotte, Main Street Books in Davidson, Foggy Pine Books in Boone and Quail Ridge Books in Raleigh.

You also can learn more about my books at my website:

All the best this Christmas season!


Posted in A Little Background | Leave a comment

We fought the good Amendment One fight – A Time for Thanks – A Time for Reflection

Watching the Amendment One results come in on Tuesday night was not easy.

Realizing that Amendment One would pass was disconcerting.

Learning that Amendment One had passed was painful.

And yet.  And yet.  We should be thankful.  I certainly am.

I am thankful for the 832,219 voters in NC who voted for justice, by voting against Amendment One.

I am thankful for the seven counties in NC who voted against the amendment.  Granted, there are 100 counties in NC, but we have to start somewhere, and these counties, as evidenced below, are a great place to start.

Mecklenburg County, the most populated county, and my home county, voted against the amendment by a margin of 54.18% to 45.82%.  For that I am thankful.

Wake County, our State capital, voted against the amendment. For that I am thankful.

Orange County (home of UNC Chapel Hill), Durham County (home of Duke University and NC Central University), Watauga County (home of Appalachian State University) and Buncombe County (home of UNC Asheville), voted against the amendment.  These are counties with universities.  With young people.  With people who take education seriously.  For that I am thankful.

I am thankful too for all the law professors who spent signficant time to educate the public on the legal issues of Amendment One.

I am thankful too for the politicians who weren’t afraid to take a stand against the amendment, and for the business people who spoke up against it.

I am thankful too for the lawyers who became active to help people understand the meaning of their vote on the amendment.

I am thankful too for all the “straight but not narrow” people of NC who voted against the amendment, because a minority group cannot obtain equality on its own.

I also am thankful to my law partners who provided encouragement, to those who read and agreed with me, but also to those who had a different opinion on certain issues but who engaged with me in thoughtful conversation.

I am thankful for my fellow church members at St. John’s Baptist church who encouraged me to continue writing and to my ministers who helped increase my faith by their presence beside me on this issue.

I am thankful for the people I know and to the people I have never met who engaged with me on this blog, to those who supported me, to those who corrected me and even to those who disagreed with me, because they took time to listen to what I had to say.

I am thankful for my friends, both local and far away, from high school, college and law school, who found out I was writing about this topic and who lent their support by a call, or an email or a text message.

I am also thankful for the opportunity to write.  When I thought about creating this blog, I didn’t know where to start.  My daughter said I should go to and follow the directions.  I figured if I created a blog, maybe a few hundred people might look at the site and if I reached a 1000 viewers, it would be fantastic.  Yet, before the results of the vote were announced on Tuesday night, I had received more than 60,000 views on the site, 30,000 of which occurred in the last three days leading up to the vote.  I don’t know how it happened, but I am thankful that it did and for the opportunity to be able to speak with so many people.

And finally, for my family, I am very thankful.  For my mother, who began wearing a Vote Against button and was proud to tell me one day that she had explained some of the issues to her friends and they had told her they were going to vote against the amendment.  For my father, who engaged me on the legal issues and encouraged me on. For my sister, who sent me information from her home state of Vermont to educate me on civil unions and offer support.  And to my brother, who is one of the hardest workers I know and the least judgmental of the clan.

I am thankful too for my son, who did his best to wake up the Wake Forest University community by writing against Amendment One in the student newspaper.  And for my daughter, who always is working for a cause outside herself, and who inspired me in my work, I am thankful.

And for my wife, Janet, I am thankful.  She put up with the late night blogging, the frustrations, the disappointments and she continued to remind me when others said this was a lost cause, that no cause which is worth fighting for is a lost cause, and for all of that, I am very grateful.

And although I am thankful for everything I mentioned, it is an emotional time as well.

We hurt for the many people of this state to whom this amendment shows disrespect and to those who could be impacted in more tangible ways. 

We cringe at the ministers who cheer the outcome on the front page of the paper, and we shake our heads at the politicians –like Bill James in Charlotte — who wants to use the vote to deny benefits to his county employees less than 24 hours after the votes are tallied.

Our natural reaction is to fight fire with fire, but we cannot bring others in our State along with acrimony. 

We need to continue to educate, to help people understand — not back them in a corner by calling them names.

And we also have to remember that when others criticize our state, they are not criticizing all of us, though it may sound like it at times.  

On May 2nd, Dr. Karl Campbell, an Applachian State professor, presented at a conference in Charlotte entitled: “Moving Forward Together: Deliberating the Implications of Amendment One”.

Dr. Campbell was not then and is not now advocating for or against Amendment One.  He is a history professor, who talked about NC history. 

And yet, what I find in his message about North Carolina is comforting; a factual basis for that feeling we call hope.

North Carolina’s Historical Legacy

I am here tonight as a historian and of course my views do not necessarily represent my employer Appalachian State University.  Furthermore, I am not, in any way, an expert on Amendment One.  I am reminded of a comment made by another speaker in a similar situation.  He said: “I am too ignorant to discuss it wisely, and too wise to discuss it ignorantly.”  I am going to follow that example tonight.

A historian’s job is to place a topic in the context of time and place. To do that with Amendment One tonight I want to ask: What kind of state is North Carolina?

North Carolina’s historical image is very contradictory and has been for over a hundred years.  It may surprise you to learn that soon after 1900, and through most of the last century, North Carolina was most often described by the adjective “progressive.”  It was common to have North Carolina referred to as “the most progressive southern state.”

The famous political scientist V. O. Key summarized the conventional view of North Carolina in 1949 when he explained that “the state enjoys a reputation for its progressive outlook and action in many phases of life, especially industrial development, education and [to some extent] race relations,” at least when he compared us to our moss back neighbors in the Deep South.

We even earned a few interesting nicknames in the first half of the twentieth century.  Key called us “the progressive plutocracy”—“progressive” because of our forward-looking paternalistic leaders, “plutocracy” because those leaders were a small group of rich industrialists and wealthy agriculturalists who did not willing share their power.

We were also nicknamed “The Wisconsin of the South.”  Just as Wisconsin became famous for leading the North in progressive reforms, North Carolina seemed to be leading the South during the Progressive Movement.  Interestingly, a recent study finds that of all the states in the Union North Carolina most closely resembles Wisconsin in public opinion polls.

Yet North Carolina’s progressive image existed side by side with social and economic facts that contradicted profoundly the state’s reputation.

-We became the most industrialized state in the South during the first half of the twentieth century, yet we also had the nation’s largest rural farm population.

-The home of nationally respected institutions of higher education such as UNC, Duke, Wake Forest, and Davidson, we also had a high school dropout rate of over 32 percent, one of the highest in the nation.

-In spite of our progressive efforts to build roads and solve social problems we consistently ranked under 45th in the quality of life and 32nd in per capita income.

Thad Beal, a political scientist at Chapel Hill writing in the 1970s, observed that these contrasting tendencies suggest the difficulties in generalizing about the state since it is neither simply “Liberal” nor simply “Conservative.”  He concluded that the best we can do is agree to call it a “Progressive Paradox.”

Working within this progressive paradox there have generally been two different types of politicians representing two different types of political cultures.  Instead of calling them liberal and conservative (which is neither helpful nor accurate) scholars have identified two different strains of conservatism running through the twentieth century: traditionalist and modernist.

-Traditionalists are motivated by their concern that traditional, Christian family values are being threatened by the modern world.  They tend to be anti-government, anti-taxes, suspicious of higher education, and worried about the impact of modernity on our culture and society.

-Modernists are motivated by their desire to harness the rapid changes taking place to improve business and create jobs.  They tend to want to use the government to promote development, increase funding for education, and reconcile themselves to the social transformations occurring around them.

The archetypical traditionalist would be Senator Jesse Helms.

The prototype of a modernist would be Governor Jim Hunt.

Throughout the twentieth century our contradictory state has experienced defining moments in which traditionalists and modernists clashed over the future of North Carolina.  In the few minutes I have left I would like to point out four of these defining historical moments that seem particularly relevant to our debate over Amendment One today.


In 1908, by a referendum vote of 62 percent to 38 percent, North Carolina became the first southern state to enact statewide prohibition of alcoholic beverages.  The Raleigh News and Observer proclaimed that “The Sun Will Rise Tomorrow on a State Redeemed from the Whiskey Evil—Saloons.”  Of course back then Prohibition was seen as a very “progressive” reform, but it still pitted the traditionalists against the modernizers and the traditionalist won. 

Women’s Suffrage

At the turn of the century when a Yancey County Republican introduced the first woman’s suffrage bill in the General Assembly the all-male legislature referred the bill to the Committee of Insane Asylums (!) where it died.  In 1920 the North Carolina Legislature voted against the Nineteenth Amendment even as it passed throughout most of the country and became part of the Constitution.  But don’t worry.  The General Assembly did make up for its mistake by passing a resolution supporting the right of women to vote—in the 1970s.

Senator Sam Ervin used to tell a story about the time a visitor asked the Senate Chaplain:  “Reverend, when you pray, do you look at the tragic condition of the country and then pray for the legislators to find solutions?”  The Chaplain replied:  “No, I look at the legislators and pray for the country.” 

Darwin in the Schools

In 1925 North Carolina had a heated debate over whether to prohibit the teaching of Darwin in the public schools.  In this defining moment it was the modernists who won, protecting academic freedom and keeping Darwinism as a part of the science curriculum.  That same year the state of Tennessee went the other way and voted to remove Darwin from the schools, which led to the famous and embarrassing “Scopes Trial” that helped to define Tennessee’s image for the rest of the century. 

The Brown Decision

In 1956 Governor Luther Hodges proposed a Constitutional Amendment to prevent the racial integration of North Carolina’s public schools.  The Pearsall Plan, as it was called, passed the Legislature by an overwhelming margin which sent it to the public for a vote (much like the one we are discussing tonight).  It passed by a five to one margin.  The Pearsall Plan constitutional amendment delayed significant racial integration in North Carolina for over a decade.

Allow me to share a few brief observations about these defining events in our history:

1) These large cultural crusading moments are usually democratic, in that they do express the will of the majority, even as they also limit the rights of the minority.

2) They are usually, although not always, won by the traditionalists who are turning to law or government to turn back the waves of change sweeping over the state and the country.

3) They are seldom successful in the long run, as the strengthening currents of the modern world overcome the legal and constitutional barriers set up against them.

Today in North Carolina alcohol is sold, Darwin is taught, women can vote, and Jim Crow segregation is gone.

So here we are again at another defining historical event in our state’s history, another contest between traditionalists and modernizers, another historical moment in which we will help to define the Progressive Paradox.

I would like to suggest that there is another way to think about North Carolina’s progressive reputation that is relevant to our debate over Amendment One.  Perhaps being a progressive state is not just about the outcome but about the process.

Maybe our community can avoid the hateful divisions that have torn so many others states apart during this debate.  Maybe we can fight hard, but fight fair, and not lose sight of the humanity of our adversaries.  This would be progress and it would be a positive outcome no matter whether you believe Amendment One is a blessing or a travesty.

I will close with a well known Rabbinic story:

An ancient Rabbi once asked his pupils how they could tell when the night had ended and the day had begun.  One student asked: “Could it be when you can see an animal in the distance and tell whether it is a sheep or a dog?”

No, answered the Rabbi.

Another student asked: “Could it be when you can look at the tree in the distance and tell whether it is a fig tree or a peach tree?”

No, answered the Rabbi again.

“Well, then, what is it?” his pupils demanded.

“It is when you look on the face of any woman or man and see that she or he is your sister or your brother.  Because if you cannot do this, then no matter what time it is, it is still night.”

Here is hoping for a bright tomorrow.

Posted in A Future Together | 6 Comments

One Trial Lawyer’s Final Argument to the Amendment One Jury

Members of the jury, I want to thank you for your patience and attention for the past two months in this very important case.

Our system of justice cannot work without citizens participating in the process. You have done that well and very soon, you will have a chance to take the last act in performing your civic duty.

In just a few hours, you will be given a verdict sheet, which you will take with you into the jury room.  On that sheet will be one question.

You know the question by heart now, but let me read from the verdict sheet, which asks you to say whether you are for or against the following:

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.

In the time that I have with you now, I ask you to engage with me on several topics relating to this amendment.

First, I would like to review with you some of the legal issues raised by this question you will decide.  I do not have time to get to all of the legal issues, however, and for that reason, I ask that you rely upon your memory of the evidence that has been presented on the legal issues.

I also would appreciate the opportunity to discuss with you what the other side contends are the primary reasons you should vote for this amendment to our Constitution.  In doing so, I would like for you to think with me about whether a vote for this amendment actually will accomplish their stated purposes.

Finally, it is important that we listen to the words of real people.  And then I will end with a true story.

So first, let me start with the legal issues.  These are perhaps the driest of the topics we will discuss, but they are important topics nonetheless.

Let’s start with the wording of the amendment.  As you examine the wording in detail, you will come to the conclusion that the amendment is about more than just marriage.

You may remember the evidence that was presented in this case about the legislative history of this amendment.  The original House bill said this is how the amendment should read: “Marriage is the union of one man and one woman.  No other relationship shall be recognized as a valid marriage by the State.” That language is remarkably different from the language in the amendment that is being put before you today.

The principal difference in the wording of the original House bill and the final version of Amendment One are three simple but complicated words: “domestic legal union”.

The other side has admitted, and the Constitutional Amendments Publications Commission has said in its official statement on the amendment, that no NC case or statute has ever defined this term “domestic legal union”.

More importantly, the Commission, which is a neutral body made up of the NC Secretary of State, the NC Attorney General, and the General Assembly’s Legislative Services Office, has said that the Courts are going to have to sort out the meaning of the term.  It is not clear how long that will take.

Of course, the term “marriage” has been defined in NC for many years and we know what it means — the union of one man and one woman.  It has always been this way in NC and the chance of a NC Court changing that are rather remote.

In other words, we North Carolinians know what we are talking about when we talk about marriage, but when we talk about something called a domestic legal union, we are not sure what it means and we are at the mercy of the lawyers to fight about it and the courts to sort it all out.

There is good news, however, as you think about the meaning of this term “domestic legal union”.  Legal experts on both sides agree that in addition to preventing our legislature and our NC Courts from permitting same-sex marriages, the term “domestic legal union” will prevent the legislature from passing any law allowing civil unions for same-sex couples.

So what does this mean?  You heard the evidence presented about civil unions.  At least  nine states have adopted laws that allow civil unions of one type or another: California, Delaware, Hawaii, Illinois, New Jersey, Nevada, Oregon, Rhode Island; Washington.

The civil union laws in these states afford important legal rights to committed same-sex couples, similar to the rights which NC married couples take for granted. For example:

  • Laws relating to title, intestate succession, or other incidents of the acquisition, ownership, or transfer, in life or at death, of real or personal property, including eligibility to hold real and personal property as tenants by the entirety
  • Laws regarding adoption, divorce, workers’ compensation, wrongful death, domestic violence
  • Tax laws, family leave benefits, and laws relating to medical care and visitation

Yet, the civil union domestic partner laws in these other states do not include recognition of same-sex marriage.  Instead, these laws are premised on the idea that if the relationship is between only two unmarried same-sex individuals in a committed relationship similar to marriage, then as tax paying citizens of the state, they deserve to receive some of the same state based benefits as married couples.

After all, married couples don’t have to be saints to get all the state based benefits of marriage.  They can be quite the contrary.  They can be drug addicts, adulterers, spouse beaters, convicted felons, verbal abusers, bigots, atheists, agnostics, and the list goes on.  Law-abiding, committed, same-sex couples, some of whom are deeply religious, are out of luck in NC when it comes to marriage, and if this amendment passes, they will be out of luck when it comes to civil union domestic partnership opportunities.

Now, just to be clear, NC does not currently recognize civil unions, so you may ask me why I am spending so much time on this point.  It is because we have heard evidence, based on professional polling data, that many North Carolinians do not understand that a vote for Amendment One is also a vote against civil unions.  This is important because the same polling information has shown that a large percentage of potential North Carolina voters who believe marriage should remain the union of one man and one woman, also believe it would be appropriate to allow same-sex committed couples — two people only — some of the rights associated with civil unions.

Thus, the way Amendment One is worded, if you vote to approve Amendment One, you are voting on more than just marriage.  Simply put, you are voting against civil unions. So a vote for marriage is also a vote against something else.  You will not find this explanation on any of the Vote for Marriage signs or commercials.

Now some of you may say that this is just fine with you, because you do not want same-sex couples to have any rights in this State, and you are happy that the language is very broad.  You do not want the legislature to extend any rights to same-sex couples, because they are homosexual.

Others of you may say that you are against same-sex marriage but you are not against civil unions for same-sex committed couples.  This presents a real quandary.  You will have to decide whether to vote for religious or traditional marriage, knowing that your vote will be a vote against economic and legal equality in the form of civil unions.

Let me share with you a similar situation that occurred in Arizona in 2006.  Arizona is a conservative leaning state, like NC, and in 2006, voters were faced with a constitutional amendment similar to Amendment One.  Like Amendment One, it was broad in scope, broader than just marriage.  It would have prohibited the state, as well as cities, counties, universities and school districts from recognizing civil unions or domestic partnerships. That meant it would even have applied to men and women living together but not married.

In 2006, the voters of Arizona rejected the broad constitutional amendment with which they were presented.  This forced the legislature to re-write the amendment to focus only on marriage.  When it did that, the new, more narrow version of the amendment, passed in 2008.

If you believe that the legislature has gone too far, that is, if you are against same-sex marriage but you believe that the state, and municipalities and universities should have the right to extend benefits to same-sex couples, then the Arizona experience is a perfect guide for you.  You can vote against the amendment, send it back, and make the politicians get it right.

Speaking of municipalities and universities, let me address briefly how Amendment One will impact same-sex health insurance programs and policies for their employees.

Because marriage between one man and one woman is the only domestic legal union that can be recognized, if you vote to pass Amendment One, domestic partners of employees who work for municipalities and universities are likely to lose their benefits. This is something that most legal scholars agree will happen.  It happened in Michigan with an amendment that was not as broad as Amendment One, and it happened because the municipalities were offering these benefits to unmarried same-sex couples because they were in a relationship similar to marriage.  That would be illegal if Amendment One passes.

Those who are for Amendment One have argued that municipalities and universities can simply re-write their programs, to provide that employees can cover their roommates, and that as long as the reason they are being covered is not because they are in a same-sex committed relationship similar to marriage, everything should be fine.  This argument is creative to say the least, but in practical terms, it ignores the reality of why municipalities and universities provide these benefits and it highlights that the sponsors of Amendment One have a personal bias against homosexuals, that is, roommates are fine to be covered, but not those of the same-sex who are in a loving relationship similar to marriage.

If you take the other side’s argument at face value, it becomes clear that the existing public employer programs for same-sex domestic partners will vanish — will become unconstitutional — if Amendment One passes.  And this consequence of Amendment One is not obvious to those who believe that the amendment is simply about marriage.

There are other legal issues and you have heard much evidence about them. You have heard about domestic violence, child custody, wills, trusts and end-of-life powers of attorney.   There is debate among legal scholars as to whether Amendment One will cause problems in these areas.  There is no debate, however, that if the amendment had stayed focused on marriage, rather than domestic legal unions, none of these legal issues would exist.  In other words, if the politicians had kept the focus on marriage, than none of these other areas of the law would be impacted.

So will there be an effect on domestic violence, child custody and estate planning or health-care powers of attorney?  We won’t know for sure until the courts decide. I can tell you this.  I will be fighting to prove that Amendment One does not impact these rights, and I believe I have a good argument that Amendment One will not take away domestic violence protections.  But with 250 District court judges in the state, we don’t know how all of them are going to rule on this question.

And with the other areas of the law, we don’t know what the impact will be if some of the documents in question are challenged on public policy grounds, it being the public policy of Amendment One to recognize only the domestic legal union of a marriage by one man and one woman.  Wills and trusts and powers of attorney are generally honored as long as they do not offend public policy.  Some legal scholars believe that such legal documents involving illegal domestic partnerships may be subject to challenge.  The risk is heightened where the documents make reference to a domestic partner arrangement not authorized by law.

And the second sentence of the Amendment, which will not be on the ballot but which will be part of the law, focuses only on the right to make private agreements.  A will, trust or power-of-attorney is a unilateral declaration that can be revised, not a private agreement.   The same could be true for private employer health plans, which unlike a binding contract between two individuals, can usually be revised at the will of the employer.  All of which means that there will be some uncertainty in the law, a fact legal experts do not dispute.

As for child custody issues, under current law, child custody disputes focus on the best interests of the child and the unmarried cohabitation of a parent is not a sufficient basis to deny custody.  If, however, the Amendment passes, some legal scholars believe that Judges might find that Amendment One is an expression of public policy against all non-marital relationships. In one NC Supreme Court case, for example, custody was awarded to a non-biological partner where the parties had agreed to create a family.  Some scholars believe that such a decision will be subject to challenge as an illegal domestic partnership, even if the Court believes that the child’s best interest is served by access to both same-sex adults who raised the child.

But enough about the potential legal issues and the poor wording of Amendment One.

Let’s talk for a moment about the alleged threats to marriage which are driving the push to pass Amendment One.

We have heard arguments presented that marriage is under attack across this country and that it is necessary to protect the definition of marriage by voting yes.

N.C. House Republican leader Paul Stam, who advocated for the amendment to be placed on the ballot, contended in a press conference that the amendment is necessary to prevent heterosexuals from losing interest in marriage.

Taking Representative Stam’s proposition to its illogical conclusion, if Amendment One does not pass, I should want to leave my wife of 28 years and worse yet, start playing for the other team.

So has there been any evidence presented of a connection between marriage amendments and maintaining marriages?  No.  To the contrary, you heard evidence, based on a study by UNC law professor Holning Lau,  that of the 5 states he studied with the lowest divorce rates, none have an amendment banning same-sex marriage.  Ironically, the five states he studied with the highest divorce rates had amendments excluding recognition for same-sex couples, so the amendment must not be working to prevent divorce.

In short, the appeal to save traditional marriage is an emotional one.  You know and I know that there will be no practical effect for the protection of marriage if the marriage amendment passes.  It will not prevent divorce.  It will not prevent infidelity.

And, on the other end, if the amendment does not pass, there is no evidence that men and women are going to be less attracted to one another, or that suddenly or over time, they will have less interest in marriage.

We also hear as a reason to vote for the amendment that children can only be raised properly by one man and one woman who are the biological parents of the children.

Even if sociologists and pediatricians agreed with this argument, and you have heard evidence that most of them do not, there has been no explanation and no evidence presented as to how the Amendment will cause children to be raised only by their two biological parents.   There are single parents, adoptive parents, foster parents and unfortunately, children without any parents, and the Amendment does not address these situations. And as for the notion that these parents, or same-sex couples who are raising children, are not as competent to raise children as biological parents, the idea is insulting to those families and to the children in those families.

We have also heard that you should take a stand for God’s definition of marriage.

We have heard from ministers and religious leaders on both sides of this debate.  Some ministers and religious leaders are encouraging you to vote your religious beliefs about marriage.  Other ministers, of the same faith denominations, are asking you to think about how your vote will impact your neighbors.

From a legal perspective, I ask this question. Do you want an important constitutional issue to be decided by the majority religious view?

What if your religious view is in the majority today, but one day, your religious view is in the minority?

Would you ever want the religion of others to become part of your state Constitution, or do you want the Constitution to protect your right to religious freedom?

When this country was being settled, there was persecution of religious denominations, and our federal constitution established the important protection of separation of church and state, so the state cannot dictate religion on its citizens.  This was done to protect all religious beliefs, not just those of the majority, so I ask you to be cautious with your vote.

If your desire is to convert others to your religious beliefs by constitutional directive, it sets a bad precedent for you if the shoe is ever on the other foot.

Constitutions are supposed to protect the minority, not be a tool of the majority to oppress them.

But what about sin?  We hear that homosexuality is a sin and that it deserves to be punished.  To that I say, let he who is without sin cast the first vote for Amendment One.  And while you are at it, be sure to put down as write in candidates, the divorce amendment and the infidelity amendment.

As I wrap up my argument, I would like for you to think about some of the statements by people who have testified in this trial:

From a graduate student, who speaks to us about diversity: “For it is only through embracing difference that we can truly learn about ourselves”.

From a lawyer who speaks to us about NC history: “The US Constitution was adopted by a majority of the states in 1787, but was not ratified by our state until November 1789—because we would not ratify it until the Bill of Rights was made part of the Constitution”.

From faith leaders in more than 55 towns and cities in NC:  “As clergy and leaders in our faith traditions, we are mandated by God to demonstrate and protect love in all its forms and to stand for justice for all of creation. In faithful response to this calling, we commit ourselves, along with thousands of other Christians, Jews, Muslims and other people of faith around North Carolina, to voice our opposition to Amendment One, to witness to the harms it would cause ALL of God’s children in North Carolina and to use the gifts God has given us to defeat this amendment”.

From a gay student writing to friends and family: “As a gay individual, this amendment severely limits my rights to experience what everyone dreams of. It rejects my right to marry whom I love. In a more practical sense, it rejects my right to tax exemptions and visitation. However, I do not want this to be about me. I want to look at the bigger picture of this amendment”.

From a minister who speaks to us about God’s love: “The message of Jesus was love of neighbor, acceptance of all, and radical  hospitality to those who are oppressed and marginalized. As a minister called to  share this message, I oppose NC Amendment One on the basis that it discriminates  against the oppressed.  This is antithetical to the message of Jesus.  Amendment One is not about marriage; it’s about taking away even more rights  from those who are already disenfranchised”.

From an undergraduate opinion writer who speaks to us about humanity:  “This isn’t a debate based on politics. It’s a debate in humanity. Think about the rights you would want afforded to you and the chances you wish to have with the ones you love. Think about the harm that this amendment will cause and take action. We’ve been down this road of arbitrary hatred before. It’s time to choose a new path”.

From a minister who speaks to us about God’s truth: “Jesus said ‘You shall know the truth and the truth shall set you free’. The primary truth he taught was the encompassing love of God and what it means for our relationship with others. He embodied this truth in his welcome of and friendship with outcasts and those classified as “sinners”, with tax collectors and prostitutes, Samaritans, Canaanites, Gentiles, even Romans”.

From the NAACP, on the discrimination of Amendment One: “For 102 years the NAACP’s mission has always been to “ensure the political, educational, social, and economic equality of rights of all persons.” We have always opposed any custom, tradition, practice, law or constitutional amendment that denies any rights, privileges, or opportunities to any person which can legally be extended to others. We should never codify discrimination, division and hate into our Constitution. All people have a right to equal protection under the law”.

From a minister who speaks to us about self-righteousness:  “Some people seem to think their brothers and sisters are limited only to those persons who think (believe, vote) like them. They draw circles that exclude those who are different or whose life situations/practices conflict with their own. They draw limits on their expressions of love which God (who is Love) refuses to draw. They even go so far as to write and support unloving legislation that beats today’s Samaritans and leaves them bleeding. It is possible to encapsulate a lack of compassion in a cloak of religious rhetoric and travel along the road toward the Holy City of self-righteousness”.

From a lawyer who speaks to us about separation of church and state:  “This country was settled by strong people, many of whom were seeking to avoid religious persecution and live in the land of the free and home of the brave. Our US Constitution was dead on with an amendment that protected the religious rights of all people to be free from government interference. Let’s try to keep these traditions alive when we vote on Amendment One”.

From a law professor on the same topic:  “In short the Constitutional Republic crafted by the Founders and carefully codified in the U.S. Constitution and, later, in the N.C. Constitution was designed to ensure that a majority could not take away the rights of a minority.  A member of the minority is every bit as free and every bit as entitled to Freedom as a member of the majority.  Amending the N.C. Constitution, based simply on a majority vote, to take away the rights of a minority group and to explicitly codify one set of religious values into the foundational legal document of our state, is utterly inconsistent with the bedrock principles of Liberty, Justice and Equality that have made this country a beacon of hope and freedom for more than 235 years”.

From a law professor on the amendment: “The principal problem with this language is that the phrase “domestic legal union” does not appear anywhere else—not once—in the North Carolina general statutes.  So we don’t really know what kinds of “domestic unions” will be affected by Amendment One.  But Amendment One’s vagueness makes its potential applications far greater than its propagandized limitations.  The reality is that more heterosexuals will be affected by this Amendment than homosexuals”.

From a gay mother raising three children with her partner of 13 years:” What the Amendment does do is send a message to all LGBT citizens in North Carolina that we are less-than, that we are not wanted as citizens of this State. A vote for Amendment One is not a vote for marriage; It is a vote against love”.

As I hope you will agree, these are compelling statements.

There are other considerations as well.

You have heard evidence that companies are leading the way in providing benefits to gay employees.  Some business leaders believe Amendment One will be bad for business. No one can prove this belief, but it is hard to imagine that an amendment targeted at a minority can be good for business.  In these lean times, is there any reason to take chances, particularly when there already is a law against same-sex marriage in NC?

Now, you may be sitting there listening and saying to yourself that you agree with the idea of equality for everyone but you do not favor same-sex marriage.  You are asking yourself: Can I be against same-sex marriage and still be against Amendment One? The answer is:

Yes — A vote “against” will not change current law on same-sex marriage.

Yes — A vote “against” will avoid writing into our Constitution discrimination against the minority.

Yes — A vote “against” will keep the door open for the legislature to approve civil unions for same-sex couples, which is supported by polling data.

Yes — A vote “against” will avoid economic and other harms (actual and potential) to individuals and their families (same-sex and otherwise).

And here are the truth and consequences of Amendment One:


  • No one will be hurt or lose any rights if the amendment fails to pass.  Gay marriage will still be against the law.


  • If the amendment passes, people will be hurt economically and emotionally, and in certain areas of the law in NC, there will be uncertainty and unnecessary court battles.

There was a letter to the editor today which said: “You’re supporting a lost cause opposing Amendment One”.  Is the writer correct?  Am I supporting a lost cause?

The amendment could very well pass, but history teaches us that legal prejudice can only last so long.

In June 1958, it was legal prejudice of a similar kind that landed Mildred Loving, a black woman, and Richard Loving, a white man, in jail in Virginia.  Their crime was nothing more than the act of two people deciding to get married.  The legal prejudice at the time prohibited interracial marriage.

The trial judge who sentenced them had this to say: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix”.

The Supreme Court, in a bold decision for the time in Loving v. Virginia, called marriage a basic civil right and held that “under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State”.

Some will argue that the Loving decision has no applicability to the current debate, saying that gays do not have a 14th Amendment equal protection basis in the law for same-sex marriage.  But even if they are right, they miss the point of Loving.

The legal prejudice of the Virginia law, of the prosecutor, of the trial judge and of the intermediate appellate court, did not win out.  It took nine years from the time of the arrest until the Supreme Court ruled, but in the long run, legal prejudice was defeated.

Religion drove that law and the trial judge’s perceptions about the validity of that law.

40 years later, Mildred Loving had this to say:

“When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married”.

“Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights”.

“I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about”.

If the pundits are right, and I hope they are not, legal prejudice may come to the NC constitution after all the votes are cast, but if it does, it can only last so long.  It can only last so long.

Members of the jury, the case is now in your hands.  I have done my best to inform you about the law and the truth of Amendment One.

History will judge what NC does with this amendment.  Please vote to put NC on the right side of history.

Posted in Constitutionally speaking, Fact or Fiction, The Bible tells me so, Twists and turns, What People Are Saying | 13 Comments

Does Amendment One love all the little children of the world?

One of the arguments the Vote yes for Amendment One group makes is that a child is best raised in a home having a married father and mother, who are the biological parents of the child.

The supporters of Amendment One say that children do not do as well — do not turn out as well — when raised in other environments.  They say that studies show this to be the case. 

Let’s ignore for the moment the fact that all Norman Rockwell marriages are not created equal when it comes to child-rearing.  Some opposite sex parenting families do a superb job.  Others not so well.  Some such families have two parents committed to child-rearing.  Others, not so much.

Let’s also ignore for the moment the fact that there are single parents who do an excellent job of raising their children. 

Let’s also ignore for the moment that adoptive parents do an excellent job raising their adopted children. 

Instead, let’s focus for the moment on the lengths to which the side pushing Amendment One has also gone to prevent children from being raised by unmarried couples, including gay unmarried couples.

One of my law partners, Brad Kutrow, was involved in the NC Supreme Court case of Boseman v. Jarrell that ended with a ruling allowing a gay partner who was not the biological parent of the child to have certain rights with respect to the child after she and her female partner separated.  The reason for the ruling was that it was in the best interest of the child, according to the trial judge and the Supreme Court.

Remember Tami Fitzgerald, the Chairwoman of Vote Yes.  She represented a group of associations in the Boseman case.  She also is one of the lawyers I debated recently on WTVI.  She is a lawyer, and the leader of the campaign to convince North Carolinians to vote for the amendment.  In our debate, as she has done in countless other forums, she talked about the need to protect marriage between one man and one woman, so children can have the right environment in which to be raised. 

In the Boseman case, one courld argue that Ms. Fitzgerald was not about protecting the child, who was raised by both a non-biological parent and a biological parent who were a same-sex couple.  Instead, she was about preventing any type of adoptive or custody arrangement that involved a same-sex couple, even if the lower and appellate courts thought, based on all the facts, that it was in the best interest of the child to do so.

She appeared as lead counsel in the case as attorney for:  The American College of Pediatricians, the Christian Action League of North Carolina, the North Carolina Family Policy Council, NC4Marriage, and the Christian Family Law Association.

My partner, Brad Kutrow, appeared for the North Carolina Pediatric Society, in support of a ruling that would give the child access to two parents, not one.

Before we discuss the Boseman case, and speaking of pediatricians, check out this link, , where it was reported that “representatives from the North Carolina Pediatric Society joined with colleagues from the North Carolina Psychological Association, the North Carolina Psychiatric Association, National Association of Social Workers, North Carolina Chapter and the Carolinas Chapter of the American Association of Clinical Endocrinologists in opposing Amendment One….Speaking for the North Carolina Pediatric Society, past president Peter Morris, M.D., said he worries if the amendment were to pass, “families of all types will find themselves with stresses, toxic stresses, that will affect their lives and that will affect their children’s lives.”

So how did Ms. Fitzgerald approach the Boseman case? In her brief, she started out by expressing the “concern” that “the courts should not expand the scope of North Carolina adoption statutes to give adoptive rights to unmarried co-habitating persons, such as in a “second-parent adoption”. 

Her brief also said at the outset: “Further, this Court must end the vague standard of “psychological” or“pseudo” parenting and uphold the well-recognized constitutional right of the biological parent to maintain oversight of her child’s care, custody, and associations, without the interference of unrelated third parties. This Court should reverse the District Court’s order granting joint custody to Boseman, because she is neither an adoptive parent nor a third-party who has any recognizable right to custody”.

The “unrelated” person doing the alleged interfering was only unrelated biologically to the child, but in the sense of raising the child in question, she was not unrelated at all, because she and the biological parent –her partner– had planned the birth, made decisions about raising the child and then raised the child together in a family unit that they created.

Nonetheless, Ms. Fitzgerald’s brief went on to say: “Despite all the modern advances in medical technology, it still ultimately takes a mother and a father to produce natural children. Inherent in the State’s adoption public policy, then, is the common sense notion that it is in the best interests of all children to be brought up, as natural children are, in a home with a married mother and father.”

Her brief also said: “To allow same-sex cohabitating partners to adopt minor children while they cannot marry under our statutes produces an illogical result. The public policy of the State as expressed in both the adoption statutes and the marriage statutes favors adoptive parents who are a married mother and father, and disfavors unmarried cohabitants as adoptive parents”.

And then Ms. Fitzgerald got into the alleged social science justification for her position. 

Her brief has an entire section which begins as follows: “The reasons for upholding such a public policy are well-established. Whenever possible, adopted children should be placed in the optimal childrearing environment with a father and a mother who are married. Childrearing studies have consistently shown that children are more likely to thrive emotionally, mentally, and physically in a home with married parents of differing sexes”. She then argues: “These scientific results rest on the intuitive and well-supported principle that children benefit from close, daily interaction with both a male and a female”.

And then Ms. Fitzgerald tries to attack other studies as follows: “Studies have shown that same-sex parenting has deleterious effects on children. A recent meta-analysis of 21 same-sex parenting studies revealed significant effects of same-sex parenting on children. While each of the 21 studies purported to show that there are no significant differences between children raised by same-sex couples and those raised by opposite-sex couples, same-sex-parenting advocates Judith Stacey and Timothy Biblarz detected serious methodological flaws in each study”.

In other words, Ms. Fitzgerald appears to be a know-it-all when it comes to child rearing, she hates the idea of a gay couple raising a child, and she has advocates who support her in her quest.

The group my partner represented in the Boseman case is the North Carolina Chapter of the American Academy of Pediatrics (also known as the NC Pediatric Society), which represents more than 1700 pediatricians in NC.  Since its founding in 1930, the American Academy of Pediatrics (the “AAP”) has served as the national professional organization for member pediatricians who dedicate their lives to the health, safety, and well-being of infants, children, adolescents, and young adults. The NC-AAP’s mission is to improve the health and well-being of children, their families and communities, and to provide member support through the collective efforts of its membership.

In the brief by the NC-AAP, it says:” The policy statement, written by the AAP’s Committee on Psychosocial Aspects of Child and Family Health, reflects the official view of the NC-AAP, as well as the current consensus of scientific research finding that adoption by same-sex second parents promotes the psychological, financial, and emotional security of children and poses no risk of negative consequences to their health, adjustment or development”.

The policy statement by the AAP Committee makes some good points, such as, having second parent adoptions for same-sex couples protects the child’s relationship with both adults who are raising the child.  It secures legal rights to the child, should the adults separate, including child support.  It ensures eligibility for health insurance for the child from both adults.  It provides both adults with the right to provide consent for medical care and to make education, health care and other important decisions for the child.  It also creates an additional basis of financial security for the child, while the adults are living and then if one dies, through social security survivor benefits.  In short, two is better than one for the child, even when it is a same-sex relationship.

The American Academy of Pediatrics, and the NC Pediatric Society, therefore, were in support of ensuring access by the child to two parents, which, over the objections of Tami Fitzgerald, occurred in the Boseman case.

Some worry, however, that Amendment One is a sneak attack on the ruling in this case, because the decision was based on the fact that the same-sex domestic partners in that case had created a “family unit”, which the Court found compelling.  If Amendment One passes, and the voters decide that there can be only one legally recognized family unit, the marriage of one man and one woman, then Tami may get her way.  Children like the child in the Boseman case may not be able to have any legal ties to both same-sex parents, no matter how much a court believes it to be in the child’s best interest.  Now does that sound like a good thing for children?

Amendment One has been a raging argument about what is best for this or best for that, based on those who think they know what is best for “others”.  The best marriage is that between one man and one woman.  The best way to raise a child is to have only one man and one woman do it who are the biological parents.  And the arguments go on.

My partner Brad Kutrow asked me this rhetorical question: “If we’re not going to trust the pediatricians who care for all our children, who are we going to trust?”

I ask you. Should we trust the politicians?  Should we trust Tami Fitzgerald?  Should we trust anyone who speaks from a perch and who hasn’t the least idea how well two same-sex partners are raising their children?  By the way, these are rhetorical questions too.

There is a show on TV called Modern Family, and it is so-named for a good reason. These “modern families” seem to find the same challenges and same rewards in raising children as traditional families, albeit in a way that doesn’t fit the traditional family model.

As we think about Amendment One, let’s be careful not to let our traditions (those which we have experienced or those with which we are most familiar) guide us to think that they are the best and only way to raise a child.  

Children are very lucky if they have two parents who love them, whether their parents are straight or gay. 

Being different is not a sin to a child who is being tucked into bed at night by two loving parents.  Let’s not forget it on May 8th.     



Posted in Fact or Fiction, What People Are Saying | Leave a comment

Guest Post – A vote for Amendment One is a vote Against Love

This post is courtesy of Sarah Brady, a family law attorney in Charlotte, NC.  As part of her practice, Sarah advises both straight and gay individuals on family law legal issues.  Sarah helped me understand some of the nuances of NC family law, which were unknown to me because I don’t practice in that area.  She and I also were part of a presentation today to local lawyers on the legal issues being debated concerning Amendment One.

Sarah did an excellent job of presenting the legal issues of Amendment One in a neutral fashion.  You would not know by her presentation on the legal issues that she is a lesbian, that she has a very personal stake in this vote.

In this post, she speaks not about the legal issues but about how Amendment One affects her personally, as a lesbian and mother of three children, living in a committed same-sex relationship.  I salute her for her willingness to share her story, because it is sometimes necessary to  hear such stories for the walls of discrimination to come tumbling down.

As an attorney licensed to practice law in North Carolina, I can quickly list the legal reasons I believe one should be opposed to Amendment 1: (1) It is unnecessary, as we already have a statute limiting marriage to one man and one woman; (2)  It was drafted in an intentionally broad and vague manner, such that it is certain to result in years of litigation; and (3) The purpose of our State’s Constitution is to give rights to the people, not to embody discrimination against a minority. 

However, these are not the fundamental reasons I am opposed to the Amendment. 

As a lesbian, this Amendment is about me and about my family. My opposition is profoundly personal. 

When Jordan Lawrence appears in a televised debate (link: and analogizes gay and lesbian relationships to that of a sister being unable to marry the brother with Down syndrome she cares for, it is the commitment my partner and I have made to one another that he is belittling.  When a minister of a 6,000 person congregation makes jokes during a Sunday sermon about gay people (link:, it is my family that they are laughing at.  When proponents of this Amendment speak of protecting “traditional family values,” it is my family they are suggesting does not have value. 

My partner and I have been in a committed, monogamous relationship for 13 years.  Eight years ago we were legally married in St. Catharines, Ontario.  We own a home together. We pay taxes.  We are members of a church.  We support local businesses and are involved in our community.  We give generously of our time and money to charitable causes we believe in. 

We are the parents of three beautiful, happy, well-adjusted children.  Our kids were desperately wanted and are deeply loved.  They have two devoted, doting parents, including a stay-at-home mother who ensures their childhoods are full of enriching and educational experiences. Contrary to what proponents of Amendment One have been saying, the scientific studies show that we are not the exception: children raised by lesbian parents are just as well-adjusted, and in some cases more so, than children raised by heterosexual parents (link:,8599,1994480,00.html.)

So, when proponents of this Amendment advocate passage of the Amendment on the basis of protecting traditional marriage, I ask: how does my family threaten your marriage?  Is your marriage so weak that the existence of a committed gay couple may cause it to crumble?  As a family law attorney, I have guided hundreds of clients through the divorce process.  I can tell you that not one has cited as the reason for their separation the fact that a gay couple has moved in next door. 

The proposed Amendment does not strengthen heterosexual marriage:  It does not require all citizens of North Carolina to enter into a heterosexual marriage; It does not bar divorce; It does not provide for mandatory state resources to assist heterosexual marriages that are shaky.  It does nothing to actually protect marriage. 

This Amendment won’t stop gay couples from existing, from being committed to each other, from loving each other just as fiercely as straight couples do, and from raising children together.  

What the Amendment does do is send a message to all LGBT citizens in North Carolina that we are less-than, that we are not wanted as citizens of this State. 

A vote for Amendment One is not a vote for marriage; It is a vote against love. For my family and for yours, I urge you to vote against the Amendment on May 8.

Posted in What People Are Saying | 1 Comment

Votes on Amendment One by County, City and Town Boards – Is it just politics, or is there more at stake?

County, city and town boards across the state have been passing resolutions for and against Amendment One.

When the vote is a unanimous vote for or against the amendment, you can tell something about the constituency of the municipal body.

Typically, the leaders of the municipalities that overwhelmingly support Amendment One will tell us after the vote that it was important for the elected leaders to stand up and protect the time-honored institution of marriage.

Usually, the leaders of the municipalities that overwhelmingly oppose Amendment One will tell us after the vote that it was important to stand up for the rights of all their citizens.

Some people tend to believe that Republicans are for Amendment One and Democrats are against Amendment One.  Some like to say that Conservatives are for Amendment One and Liberals are against it.

The truth is that Amendment One is neither a Republican or a Democrat, and people on both sides of the political aisle have opposing views within their own parties.

Appalachian State professor Karl Campbell gave an interesting perspective about the political parties in NC at a recent forum on Amendment One in Charlotte.  He said that calling people Republicans and Democrats, or Conservatives and Liberals, is not the right way to think about political parties or ideologies for North Carolinians.  He said that we have broken down over time as either Traditionalists or Modernists.  Labels like liberal and conservative can be misleading and inflammatory.  These other labels are less critical and are more accurate, he says, because over time, the NC Traditionalists are the ones who have wanted to maintain the status quo and the NC Modernists have been the ones who wanted to embrace change.

Professor Campbell did not speak to this point, but it occurs to me that churches often are either Traditionalists or Modernists, with some falling somewhere in-between.  The best example of the Traditionalist church is the Catholic Church.  The Unitarian Church is a good example of the Modernist church.  Other churches fall somewhere in-between, and Baptist churches are all over the board, because their leadership usually comes from the ground up and not the other way around.

You can say the same thing about the political pockets in the landscape of NC known as our counties, cities and towns.  These elected bodies are sometimes heavy on Traditionalists or heavy on Modernists, depending upon their location within the state.  Rural areas lean toward the Traditionalists.  More urban areas lean toward the Modernists.

By the way, as Professor Campbell explained, it was the Traditionalists in NC who were in favor of (and who won the vote) on the issue of separate but equal schools in the 1950s, in order to maintain segregation of the races.  It was the Modernists in NC who were for (and who won the vote on) the issue of allowing Darwinism to be taught in the public schools of NC, in order to expand public education beyond the teachings of the Bible.

Debates like Amendment One are like the debates we had on race relations and teaching science in the public schools.  They can bring out the best and worst in the Traditionalists and the Modernists.

Neither side has patience for what they perceive to be the backward thinking of the other. There are perceived and actual threats on all sides.

Traditionalists fear threats to their way of life as they know it.  Modernists feel threats to the world around them if “the people” refuse to accept change.  I liken this feeling to the thinking of the main character in the movie Shawshank Redemption, who said: “We can either get busy living, or get busy dying”.

More often than not, the votes by elected officials on Amendment One break neatly along party lines.  Republicans often vote for the amendment because of their Traditionalist base. Democrats typically vote against Amendment One because of their Modernist base.

This week, the Mecklenburg County Board of Commissioners passed a resolution opposing Amendment One, and did so largely along party lines.  It was a 5-4 vote.

In a letter to the editor in the The Charlotte Observer on May 3rd, the writer complained that Amendment One was none of the Mecklenburg County Board’s business, meaning it had no business wasting taxpayer money debating and voting on the issue.

In part, I agree with the writer.  I agree, because in some counties, this is called pandering to the base in an election year.  On the other hand, Mecklenburg County and its employees have a stake in this vote unrelated to marriage.  That stake is one of those pesky bi-products of Amendment One that the “vote yes for marriage” message seems to ignore.

What I am talking about is domestic partner benefits.

I already covered in length the threat to domestic partner benefits offered by municipalities in a previous post.

In that post, I used Mecklenburg County’s experience as one example of how municipalities structure those benefit programs.

Just a few years ago, Mecklenburg County adopted a policy that extended  ”benefits to same-gender domestic partners”, which it defined as “two individuals of the same-sex who have reached the age of majority and live together in a long-term relationship of indefinite duration, with an exclusive mutual commitment in which the partners share the necessities of life and are financially interdependent” and who are “not married to anyone else, do not have another domestic partner, are legally prohibited from marrying each other in the state of N.C., and are not related by blood more closely than would bar their marriage in this state”. Employees seeking Domestic Partner benefit coverage are required to complete an Affidavit of Domestic Partnership, including verification of the existence of the partnership for one year, and supply evidence of joint financial documents, joint mortgage or lease, or other similar verification in the affidavit.

In other words, in Mecklenburg County, and in other municipalities, the relationship that affords same-sex partner benefits requires a committed relationship akin to marriage.

Family law professors in this state are of the opinion that Amendment One will prevent Mecklenburg County and other local governments from continuing to offer domestic partner benefits to same-sex couples based on their committed relationships akin to marriage.  This is because the only domestic legal union that will be recognized by Amendment One is the marriage between one man and one woman.

The law professors who reach this conclusion base their opinions on the wording of Amendment One and on a Michigan Supreme Court case, known as National Pride at Work, Inc. v. Governor of Michigan, et al, 481 Mich. 56, 748 N.W.2d 524 (2008).  In that case, the Court concluded that the Michigan amendment, which states that the union of one man and one woman in marriage shall be the only agreement recognized in marriage or a similar union for any purpose, ” prohibits public employers from providing health insurance benefits to their employees’ qualified same sex-sex partners”.

The Michigan Court analyzed at length the reason the benefits were being provided and whether because of those reasons, there was an improper recognition of a union similar to marriage that was not between one man and one woman.  The Court found significant that the relationship must be between persons of the same-sex, and that they must be in a committed relationship and that they must not be legally married to anyone else and that they must share a residence and be jointly responsible for the necessities of life.  These qualification requirements, which are very similar to those of Mecklenburg County and other municipalities in NC,  were found by the Michigan Court to be some of the core qualities of a marriage, and that providing benefits to same-sex couples on that basis was a recognition of a relationship not permitted by the Michigan constitution.

In the recent paper by three Campbell Law School law professors referenced on this blog, they opine that “even if the proposed Amendment passes, same-sex partners still may be able to receive health insurance benefits from public employers”.

They say: “It depends on how “domestic partner” is defined. The Michigan Supreme Court answered yes in National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008), the leading case on the issue, but the insurance benefits in that case were premised upon the recognition of a narrowly defined status (“domestic partner”) that was substantially similar to marriage. If “domestic partner” is defined in a way that does not create a status similar to marriage, North Carolina’s proposed marriage amendment would not prevent public employers from offering such coverage”.

In other words, according to these three Campbell Law School professors, if municipal governments make these benefits available only when same-sex and opposite sex couples make their arrangements sound less committed and less like marriage, then everything will work out just fine.  This argument, if put into practice, could be the makings of the NC version of “Don’t ask-don’t tell”, or worse yet, “When asked – lie about it”.

Russell Robinson, a well-known lawyer in NC, had this to say at a forum this week.  He presented the issue in terms of an animus toward gays and lesbians.  He said that the main sponsor of the amendment explains that a city could still allow an employee to pick one household member to be a joint health care beneficiary, but only if they do not have “the status of a domestic relationship other than marriage”.  Russell Robinson says that “if this means anything, it must mean that the presence or absence of any private sexual activity is the test of whether they can have benefits”.  He goes on to say that “if they are just good friends or only roommates, they can; if they are active lovers, they cannot”.  He believes that apart from the harm this will cause to those who lose these benefits, this fact alone could lead to a federal constitutional challenge invalidating the amendment, because according to our Supreme Court, a  person’s private sex life is “out-of-bounds for government action”.

The problem with the analysis by the three Campbell Law School professors, who are opposed by Family Law professors throughout the state, is their failure to analyze the issue in the context of how benefits currently are offered by municipalities.  If they had done that, they might be forced to conclude that based on the way that Mecklenburg County and other municipalities provide such benefits, it is highly likely that the current programs will be held to be unconstitutional if Amendment One passes.

Their contention that these benefits may still be possible also appears to ignore reality.  And here is why.

The three Campbell Law School professors impliedly acknowledge that true domestic partners –those unmarried couples in marriage like relationships –cannot continue to receive public employer benefits if Amendment One passes, unless they change the description of their relationship.

The professors agree that “given the qualities that domestic partnerships, as defined by the insurance policies, held in common with marriages, the court in National Pride at Work concluded that ‘domestic partnerships are unions similar to marriage,’ and thus the recognition of such partnership agreements in the insurance polices violated the marriage amendment.”

The professors go on to explain.

“The Kentucky Attorney General reached the same conclusion as the Michigan Supreme Court in National Pride at Work case when asked whether a state university’s offering health insurance coverage for “domestic partners” of its employees violated the Kentucky marriage amendment.  The insurance policies at issue in Kentucky defined eligibility for coverage as a“domestic partner” to include criteria such as not being currently married to or legally separated from another person, being at least 18 years of age and mentally competent, and not being related by blood to a degree that would prohibit legal marriage. The attorney general’s opinion observes that “[a]ll of these criteria . . . expressly define ‘domestic partner’ in terms closely resembling the legal conditions for the status of marriage.”One of the policies also required “living together as a couple.” The opinion adds that “if ‘living together as a couple’(emphasis added) is recognized as part of a legal status for unmarried individuals, in conjunction with the other elements resembling marriage [identified above], it further indicates an intent on the part of the university to recognize an imitation or substitute for marriage”.

Then they say: “The reasoning used by the Michigan Supreme Court and Kentucky attorney general would not bar North Carolina public employers from covering domestic partners in a way that does not define their relationship in terms of a status similar to marriage. The Kentucky attorney general’s opinion explains that[i]f “domestic partner” were defined in a more general manner, not so delimited as to resemble a tailored alternative to the legal status of marriage, there would be nothing in [Kentucky’s marriage amendment] to prevent Kentucky’s public universities from offering this coverage. Alternatively, the universities could elect to offer health insurance benefits to all of an employee’s dependents, or to use any other approach that would not involve the unconstitutional recognition of a legal status resembling that of marriage”.

In other words, municipalities can re-write their policies so that employees can cover their mothers, fathers, brothers, sisters, neighbors, former college roommates, mailmen, and close or distant friends or cousins, but they will have to stop providing these benefits to two unmarried individuals who receive them because they are in a committed relationship with a number of factors that approximate marriage.

I suppose the rules could be re-written to be more narrow.  Municipalities could allow coverage just for roommates, and as long as the roommates didn’t say they were lovers in a committed relationship, things would be fine.  So how many roommates?  And why would a municipality make roommate coverage available?

Apart from the fact that Amendment is likely to kill off these benefits as currently provided, affecting real couples and their children (something the Campbell professors conveniently avoid discussing), does anyone think that municipalities are going to extend health benefits to a group of roommates whose only relationship is sharing the rent? Maybe they are just drinking buddies, or maybe they are going to room together just for the benefits.  The possibilities for abuse would be endless and would ignore entirely the reason that municipalities extend domestic partner benefits in the first place.

But I digress.

What was I talking about? Oh, yea, the issue of whether these votes by municipalities are just politics, or whether there is more at stake.

For the Mecklenburg County Board, I submit that more was at stake, because the County has a policy that very likely will become unconstitutional if Amendment One passes, which means that same-sex partners and children of County employees could lose benefits.

And yet, the vote by the Mecklenburg County Board was along the lines of Traditionalists and Modernists, but with a twist.  The Traditionalists may believe they were seeking to preserve the status quo for marriage with their votes, but on the other hand, they also were seeking to change the status quo for their employees who receive domestic partner benefits.  Perhaps the glare of the marriage headlights blinded them to the reality of their votes.

This same glare has blinded Representative Ruth Samuelson, who said at a forum the other night, that she believes in her heart that this amendment is the right thing to do and she does not see any harms coming from it.  Does she not see them, or does she simply refuse to read the case law and listen to the explanation?  Perhaps if she did, it would leave too painful a choice between one strong held belief and the reality of the measure at hand.

In a letter to the editor today, one citizen says that future generations will thank us for protecting marriage, saying studies have shown that the best arrangement for raising children is the commitment of their married father and mother.  I am told that experts disagree on that point, but even so, does she mean that a child raised by a foster parent, or by a single parent or by a loving committed same-sex couple, will not be thankful for the love, care and feeding they received when we ask them in twenty years?

The Buzz, a way to sound off in The Charlotte Observer, had this entry today: “Let he who is without sin cast the first vote for Amendment One”.

Amendment One has created a complicated, emotional, and unnecessarily divisive debate over an issue that will not be put to rest on May 8th.  There will be cultural hanging chads to be inspected, and the Supreme Court of the United States will rule on the issue one day.

So do you civic duty.  Go vote.  But when you do, remember that for the Traditionalists and the Modernists, on some issues, there is a right side of history and a wrong side of history.  Let’s get on the right side of history with our votes on May 8th.

Posted in Fact or Fiction, Twists and turns, What People Are Saying | 1 Comment

Guest Post – Religious Marriage, Legal Marriage and Freedom

This post is courtesy of Brian S. Clarke, Assistant Professor of Law at Charlotte Law School. 

Before joining the faculty at Charlotte Law School, Brian was a practicing NC lawyer and an Adjunct Professor of Law at the Washington & Lee University School of Law. He received his J.D., magna cum laude and Order of the Coif, from the Washington & Lee University School of Law and his B.A. in History from the University of North Carolina at Chapel Hill. 

This post offers an excellent discussion of religious marriage versus civil marriage, and how the two have come together at times while remaining separate at their core. 

Brian also takes us on a ride through history, providing a good explanation of our country’s original constitutional intentions when it comes to religion. Brian concludes with a discussion about what constitutions are supposed to protect and how Amendment One is incompatible with that purpose.  This is a post worth reading and sharing with others.


This word is causing a lot of fuss these days.  Around the state and across the country, well-meaning people are debating what this word means and whether North Carolina should codify one very narrow view of marriage and domestic partnership into its Constitution.  Newspapers across North Carolina and the country have weighed in against Amendment One.  North Carolina and the word “marriage” are clearly in the spotlight.  As a result, I decided to look at the word marriage, which seems to be at the heart of the rhetoric surrounding Amendment One (notwithstanding the fact that Amendment One’s plain language and potential impact go far beyond marriage). 

“Marriage” appears, at first glance, to be a simple word with a simple meaning.  Brides and grooms.  Husbands and wives.  But the meaning of the word is colored largely by the person reading or hearing it.  For some, “marriage” conjures images of the Bible and solemn religious ceremonies.  In others it may cause a smile as they think of their spouse.  Some may associate it with parties and good times with friends.  In still others, it may trigger a grimace of regret and pain.  A small group of folks may think of the hysterical speech in “The Princess Bride” given by the clergyman with a speech impediment (“Mawwage, that bwessed awwangement”).  Whether it is joy, love, fear, or sadness (or even humor), marriage is a word that is associated with many different emotions.  With the current debate on Amendment One, the emotional connection to the word “marriage” is, all too often, front and center.  Many people discuss marriage – and thus Amendment One – in a very emotional way.  And of course that is OK, as I have said, it is an emotionally significant word. 

However, the decision to amend the North Carolina Constitution should not be based on emotion.  As I think any adult can attest, decisions made on the basis of emotion are often not the best decisions and are decisions we often regret rather quickly.  This can be true when the decision is based on a positive emotion like love (or lust), but is far more often the case when the decision is based on a negative emotion like fear or hate or insecurity or jealousy.  At least in my experience, the best decisions are rational and logical and based on facts, not emotions. 

So, let us look at “marriage” in a rational and logical way. 

What is “marriage”?  In the United States, the word “marriage” refers to two distinct things.  First, “marriage” is a religious ceremony whereby two people are joined as partners in the eyes of their God and/or church.  I will call this “Religious Marriage.”  Second, “marriage” is a legal relationship whereby the government recognizes and confers legal rights upon two people who desire to join together and meet a set of government mandated criteria.  I will call this “Legal Marriage.”[1] 

Religious Marriage and Legal Marriage are separate and distinct relationships.  A couple need not be in a Religious Marriage in order to be in a Legal Marriage.  Likewise, a couple need not be in a Legal Marriage to be in a Religious Marriage. 

For example, any magistrate may perform a Legal Marriage in North Carolina.  See N.C. Gen. Stat. § 51-1(1).  All that is required is a man and a woman who meet the statutory requirements, obtain a marriage license, and, in the presence of a magistrate, take each other as husband and wife.  No religious ceremony need occur and Religious Marriage is neither necessary nor required.  Adherence to any particular religious creed or custom is unnecessary (and would likely violate the Establishment Clause of the First Amendment to the U.S. Constitution).  Every Legal Marriage is a civil marriage, as that is what the law recognizes.  A Legal Marriage may also be a Religious Marriage, but it is not required. 

On the flip side, some religions permit plural marriage or polygamy, for example, some Mormon sects (see “Sister Wives” on TLC or “Big Love” on HBO), Islam, a few Jewish sects, and many tribal religions around the world.  Thus, for followers of these religions, it would be perfectly acceptable for one man to have multiple wives.  However, North Carolina law (and laws of every other state in the U.S.) prohibit plural marriage (polygamy).  A polygamous Religious Marriage – even if properly ordained and sanctified under the tenets of that religion– is not a Legal Marriage in N.C. or any other state. 

Even a routine Religious Marriage is not automatically a Legal Marriage.  For someone to have both a Religious Marriage and a Legal Marriage, additional steps are required – primarily ensuring that the couple can legally marry and requiring that the minister perform some purely secular bureaucratic functions, like filling out and signing a marriage license.  

But if a minister can preside over each, doesn’t this combine Religious Marriage and Legal Marriage?  No.  They remain separate and distinct, despite some overlap.  Many years ago N.C. and many other states decided to make the process for prospective spouses to obtain a Legal Marriage easier by allowing a couple to obtain a Religious Marriage and a Legal Marriage at the same time.  At least as far back as 1871, when the core of the current N.C. marriage statute was enacted, ministers have been able to perform both Religious Marriages and Legal Marriages.  See N.C. Gen. Stat. §§ 51-1 and 51-16.  When I was married in 2000, our Episcopal priest performed the Religious Marriage ceremony and then, shortly thereafter, he conducted the Legal Marriage, which required my wife and I, our two witnesses and the priest to sign our marriage license certificate.  We then filed the marriage license certificate with Registrar of Deeds in Dare County, N.C.   Our Episcopal priest thus presided over both our Religious Marriage and our secular Legal Marriage.  

In other countries, there is a strict distinction between Religious Marriage and Legal Marriage. Ministers only perform Religious Marriages.  Afterward, a magistrate or other public official conducts the Legal Marriage, which is a purely secular, bureaucratic act.  Here, however, priests and ministers do both.  I think this leads to some of the confusion and the belief that Religious Marriage and Legal Marriage are the same.  However, as I hopefully have illustrated, they are quite different.    

Supporters of Amendment One keep talking about the “sanctity of marriage” and “holy matrimony” and the Christian Bible.  They are clearly talking about Religious Marriage not Legal Marriage.  So, would Amendment One have any impact on Religious Marriage?  None whatsoever.  Why?  Because the North Carolina Constitution is not a religious document; it is a legal document.  Neither North Carolina, any other state, nor the United States of America has the ability to dictate the definition of Religious Marriage.  No government in this country can require a church to marry anyone against its faith.  Government simply has no business in the realm of Religious Marriage. 

Similarly, no particular religion should dictate the rules for Legal Marriage.  The United States, which was originally settled by persecuted religious minorities from Europe (Puritans, Huguenots, Anabaptists, Quakers, Moravians), was designed as a country where religious freedom was paramount.  The separation of church and state is part of the founding philosophy of this country.  (See McCollum v. Board of Education, 333 U.S. 203 (1948) (quoting Thomas Jefferson’s Letter to the Danbury Baptist Association dated Jan. 1, 1802); Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878) (same)).  While the religious beliefs and moral values of executives, legislators and judges naturally inform their decision making, religious doctrine itself has no place in our civil laws. 

But you may say, this is a Christian nation, so Christian beliefs should be embodied in our laws.  As I attempt to illustrate below, to do so would be contrary both to intent of the Founders of this country and the Constitution.  There are many countries where Christianity is the state religion, including, among others, Costa Rica, Liechtenstein, Monaco, Malta, Iceland, and Norway.  The United States, however, is not one of them. 

To clarify this issue, it is important to consider both why the Founding Fathers opted for a Constitutional Republic form of government (not a Democracy and not a Christian theocracy) for the United States and the purpose, in that form government, played by the Constitution. 

One of the primary purposes of the Constitutional Republic form of government that we enjoy in the United States and in North Carolina is that the minority is protected from the desires of the majority.  James Madison addressed this issue explicitly in Federalist No. 10 in explaining the problem of “factions” in a pure democracy:  “When a majority is included in a faction, [a pure democracy] . . . enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our [Constitution is] directed.”  Why did the Founders make this choice?  Because many of the people who originally settled this country were “minorities” in their home countries – whether religious, political, philosophical, or otherwise – and had experienced, first hand, the tyranny of a majority.  For example, many of the early settlers in the North Carolina Piedmont were Quakers, a Christian denomination who were officially persecuted in England under the Quaker Act of 1662 and the Conventicle Act of 1664 as “blasphemers” because of their refusal to conform their religious beliefs to the accepted Anglican theology.  It was because of experiences like this that our Founders opted for this form of government.  In their view, the best way to ensure freedom for ALL citizens was to ensure that the beliefs of the majority could not limit the freedom of the minority. 

But does Amendment One even reflect a “majority” view?  The religious arguments in support of Amendment One are based largely on a specific religious tradition, theologically conservative Christianity.  Not all Christians believe in the same version of Christianity or of the literal interpretation of the Bible.  The Episcopal Bishop of the Diocese of North Carolina, Michael B. Curry, has spoken eloquently and theologically against Amendment One.  Numerous other religious leaders of various Christian denominations – Baptist, Methodist, Unitarian, United Church of Christ and many others – have spoken out against Amendment One.  Jewish leaders and Rabbis throughout North Carolina have also spoken against Amendment One.  Polling data also supports the idea that Amendment One, even if it passes, will not truly represent the “majority” view as a majority of North Carolinians support “civil unions” for same-sex and unmarried opposite sex couples. 

However, even if a majority of North Carolinians believed that it was appropriate to enshrine a specific set of religious beliefs in our Constitution, it would still be contrary to our form of government and the social compact on which it is based.  Part of the reason for this is the purpose of a “Constitution” in a Constitutional Republic.  A Constitution does two things.  First, it outlines the structure of the government, allocates powers and establishes the system of checks-and-balances that exist between the branches.  Second, a Constitution guarantees certain rights.  A Constitution does NOT limit or take away rights. 

The U.S. Constitution guarantees Americans a variety of rights:  Due Process of Law before any deprivation of life, liberty or property; freedom from unreasonable searches and seizures; Equal Protection of the laws; the right to vote; the right to counsel and to a speedy and public trial, and many others.  It also prohibits government from making laws that infringe on certain basic rights like Freedom of Speech, Freedom of the Press, Freedom of Assembly; and Freedom of Religion.  The one amendment to the U.S. Constitution which took away a right – the Eighteenth Amendment with its prohibition on the manufacture, sale, transportation, importation or exportation of alcoholic beverages – was a disaster and was repealed 14 years later by the Twenty-First Amendment. 

Similarly, the current version of the North Carolina Constitution guarantees various rights to the citizens of North Carolina.  It contains no provision that limits individual rights.  In the past, the North Carolina Constitution has limited individual rights and has even specifically limited marriage rights.  For example, the N.C. Constitution previously made illegal any marriage between “a white person and a negro, or between a white person and a person of negro descent to the third generation inclusive.”  This provision is disturbingly similar to Amendment One.  In retrospect, codifying a prohibition on interracial marriage in the N.C. Constitution was, at best, seriously misguided.  In a generation or less, Amendment One will appear equally as misguided.  Even N.C. Speaker of the House Thom Tillis (R-Mecklenburg) agrees that Amendment One, even if passed, will likely be repealed within a generation. 

In short the Constitutional Republic crafted by the Founders and carefully codified in the U.S. Constitution and, later, in the N.C. Constitution was designed to ensure that a majority could not take away the rights of a minority.  A member of the minority is every bit as free and every bit as entitled to Freedom as a member of the majority.  Amending the N.C. Constitution, based simply on a majority vote, to take away the rights of a minority group and to explicitly codify one set of religious values into the foundational legal document of our state, is utterly inconsistent with the bedrock principles of Liberty, Justice and Equality that have made this country a beacon of hope and freedom for more than 235 years. 

Please, my fellow North Carolinians, vote AGAINST Amendment One.  

[1]  Numerous legal academics have discussed the distinctions between religious marriage and legal marriage, so these categories are not my invention, although I did formulate them independently and without prior knowledge of the academic literature.  See, e.g., Sonia Bychkov Green, Currency Of Love: Customary International Law And The Battle For Same-Sex Marriage In The United States, 14 U. Pa. J. L. & Soc. Change 53 (2011); Lynn D. Wardle, Marriage And Religious Liberty: Comparative Law Problems And Conflict Of Laws Solutions, 12 J. L. & Fam. Stud. 315 (2010).  This distinction was also critical to the Massachusetts Supreme Court’s decision in Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

Posted in Constitutionally speaking | 9 Comments