How the Proposed Amendment Got On The Ballot, the Added Sentence and Other Issues

It takes a vote of 60% of each house of the North Carolina legislature for a proposed constitutional amendment to be put to the people for a vote.

For many years, there were efforts to call the question in the legislature but it never got out of committee.  Then, in the spring of 2011, the question was called in the legislature, but it failed.  The question then came up again and passed the House (75-42) and the Senate (30-16) on September 12 and 13, 2011. See www.ballotpedia.org and search “NC Same-Sex Marriage, Amendment 1”

One thing worth noting about the timeline for the bill is that the original bill that failed did not include the second sentence in the current proposed amendment.  The second sentence is the one that protects the rights of private parties to enter into contracts.

The second sentence was added only after legal concerns were raised as to the severity of the proposed amendment, most likely in response to an excellent paper published June 6, 2011 entitled the “Potential Legal Impact of the Proposed Same-Sex Marriage Amendment to the North Carolina Constitution”, written by UNC Professor of Law Maxine Eichner, UNC Clinical Assistant Professor of Law Barbara Fedders, UNC Associate professor of Law Holning Lau,  and Rachel Blunk, a UNC law student. A link to the paper is provided below:

http://www.law.unc.edu/documents/faculty/marriageamendment/finalmarriageamendmentreport.pdf

In this paper, the authors explain that the wording of the amendment at the time of the publication of their paper could have rendered unenforceable property agreements between unmarried couples (whether same-sex or opposite sex) and could have prohibited private employers from making employment benefits available to dependents of same-sex and opposite sex couples who were unmarried.  As they explain in the paper, judicial enforcement of these rights could have been inhibited by the state’s inability to recognize any domestic legal union other than a marriage between one man and one woman.

Because many private employers in North Carolina offer benefits to same-sex couples, the business community was not happy with the proposed amendment.  Ostensibly to placate this group, and to fix a potential unintended consequence for members of the opposite sex who live together but who are not married, the second sentence was added at the last-minute.  On September 9, 2011, the second sentence was included, which states:  “This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts”.

On September 10, 2011, UNC law professor Maxine Eichner, along with fellow professor of law, Reef Ivey, published a paper explaining the effect of adding the second sentence.  This paper can be found at the link below.

http://www.law.unc.edu/documents/faculty/marriageamendment/revisionstostatemarriageamendment.pdf

The main effect of the change to the proposed amendment, as pointed out in the September 10th paper, was to make sure Courts were not prohibited from enforcing private legal agreements between unmarried parties, and that private employers could offer domestic partner benefits to employees.

But the new and improved version did not fix all the legal problems with the language.  According to the authors, the revised language does not preclude the possibility of Court interpretations that invalidate some domestic violence protections for unmarried couples, or Court rulings that adversely affect child custody and visitation rights, invalidate wills, trusts and other similar directives.  And, even with the revised language, the authors concluded that domestic partner benefits offered by some municipalities in North Carolina would be invalid.

These papers are worth reading to understand the complexity of the legal issues that the Courts may have to address if the amendment passes, and the few rights available to same-sex couples that could be lost by the marriage amendment.

Ironically, Representative Paul Stam, a supporter of the amendment, expressed concern about same-sex couples coming from out-of-state and overwhelming the Court system with divorce and custody issues.  Passage of this amendment will certainly keep the Courts busy enough without them having to worry about all those divorce happy same-sex couples.

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