Is the Amendment Necessary Under NC law?

In order to get married in NC, the state has certain requirements. You can find them in North Carolina General Statute, Chapter 51. Here is a link to the statute:

51-1.2 says that “[m]arriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina”. (added 1995)

18 years earlier, the statute was amended to provide that all interracial marriages previously declared void by statute or a court of competent jurisdiction “are hereby validated” and that parties to such interracial marriages are deemed to be lawfully married, assuming they comply with the other provisions of the statute.

So, yes, at one time, interracial marriages were prohibited in North Carolina. But let’s not get bogged down here. Let’s look at what it takes to get married in North Carolina.

The first thing to notice about the statute is that it doesn’t tell any faith group who they have to marry. Instead, it explains who is lawfully empowered by the State to conduct a wedding.

The first provision of the statute, 51-1, defines a “valid and sufficient” marriage to be one “created by the lawful consent of a male and female person who may lawfully marry” and who do so “freely, seriously and plainly expressed by each in the presence of the other”, either in the presence of an ordained minister of any religious denomination, a minister authorized by a church or a magistrate, and “with the consequent declaration by the minister or magistrate that the persons are husband and wife”. The statute also permits marriages recognized by a federal or state Indian Nation or Tribe.

One of the supposed threats to “traditional” marriage is that the State will start to redefine marriage “for everyone”. Voting down Amendment One won’t do that, because there is already a law on the books against same sex marriage. But let’s give the proponents of the amendment some credit for thinking ahead. Suppose that the people of N.C. do vote down Amendment One and then, the legislature changes the law, as it did with interracial marriage. Is it likely that in doing so, this will change the definition of marriage “for everyone” and require churches to recognize same sex marriages though to do so would be against their religious beliefs?

To date, the legislature has limited its involvement in marriage to telling churches and civil magistrates who they can marry, not who they must marry. Under N.C. law, the government does not tell a minister that he or she must marry two individuals, just because they walk in one day and say they want to get married. Ironically, many of the same groups who oppose Amendment One would oppose government intervention in religious decisions of that sort. In fact, the church is autonomous in that respect, thanks to the rule of law known as separation of church and state.

So, no, I don’t think that even if the law changes one day and same sex couples are allowed to marry in North Carolina that any church will be required to marry a same sex couple, or perform any other religious ceremony that is against its religion.

On the other hand, if the religious views of some churches are driving proponents to want to vote for Amendment One, isn’t this an effort by them to do unto others what they mistakenly believe might be done unto them? Aren’t they asking for their beliefs, their religious beliefs, to be imposed on others, for fear that if they fail, that the religious marriage beliefs of others will be imposed on them?

Take a look at Chapter 51. It tells you how old you have to be to get married. It tells you that your marriage can be religious, or that you can get a civil magistrate to perform the ceremony. It tells you that you have to have two witnesses, that you have to pay a fee to the State, and it has certain rules about signing and turning in marriage licenses. First cousins can marry, but not double first cousins. Common law and same sex marriages are not permitted. And if you are impotent at the time of marriage, all bets are off — the marriage is void. But even with all these rules, you won’t find a rule that tells a church who it has to marry.

Here is a shoe for the other foot. What if, in the interest of promoting marriage, the legislature allowed the public to vote on a constitutional amendment to refuse to allow married people to divorce, or to refuse to allow divorced persons to remarry? Would it work? Would it be practical? Certainly, rules of this type are more direct and to the point. If you want to preserve traditional marriage, don’t let people get divorced, right? Or maybe, just maybe, the proponents have decided that divorce, the breaking of a solemn vow, and all the harm that can flow from it, is a more tolerable exception to their belief system than the possibility of same sex couples committing to a stable relationship for a lifetime.

So, is Amendment One necessary under N.C. law? Yes and no. It is not necessary to change existing law. It also is not necessary to protect the rights of churches to marry who they want to marry. But it is necessary if the goal is to use one’s religious beliefs to make life more difficult for others.

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1 Response to Is the Amendment Necessary Under NC law?

  1. Angela Carnes says:

    “And if you are impotent at the time of marriage, all bets are off — the marriage is void.” So in order for a marriage to be legal, it must be “consummated”? Wouldn’t you love to know how many legislators who drafted this part of the law have suffered from ED or Prostate Cancer and now technically couldn’t get married (for the second, third, or more times) ? Talk about going into the bedrooms of our state – how intrusive is this?????

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