This post is courtesy of Shannon Gilreath, a law professor at Wake Forest University School of Law and a nationally recognized expert on issues of equality, sexual minorities, and constitutional interpretation. His book, Sexual Politics: The Gay Person in America Today (2006), was nominated for two prestigious awards: the ALA Stonewall Prize for Non-Fiction and the Lambda Literary Foundation Award. His innovative casebook, Sexual Identity Law in Context: Cases and Materials, published by Thomson-West (2007), is designed to put the law concerning lesbian, gay, bisexual, and transgender people into a social context. An advocate of interdisciplinary study, he teaches courses in Constitutional Law, Sexuality and Law, Religion and Law, and Gender Studies in the law school. He is an active speaker for gay rights causes, frequently consults on cases, and has been widely cited in journals and the popular press.
I do not favor gay marriage. I do not personally believe that gay people should marry in this state or any other. Of course, this conviction is based on reasons likely very different from those of Amendment One’s supporters.
The pertinent observation is that Amendment One is not about marriage. Perhaps the greatest lie of this election season, which we all know is full of lies and half-truths, is that it is. If the legislators giving us Amendment One had wanted to write a constitutional amendment to ban gay marriage, they could have done so in simple language. I’ll even suggest some language here: “Marriages between individuals of the same gender are not valid in North Carolina.” Incidentally, North Carolina already has a law that says just that, enacted in 1995. Clearly, if our legislators believe that a majority of us want a law banning gay marriage, they know how to write one. And yet, that is not what they’ve written in this instance. Instead, Amendment One, before voters on May 8th, says: “Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this State.”
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. Here are some possibilities. Amendment One will first mean that unmarried heterosexuals receiving partner benefits from public employees can no longer receive those benefits. So if you are an unmarried heterosexual with a registered domestic partner for purposes of your public employer’s health insurance plan, you will no longer be able to carry a person to whom you are not married on your insurance.
Amendment One also substantially limits your ability to contract around marriage should you choose to do so. There are all sorts of reasons people who love each other do not get married. Seniors, especially, who may be widows or widowers, may choose not to marry because of complications with pensions or survivor benefits. The reasons people in love do not marry are many and, frankly, such people don’t owe the rest of us any explanations; most of us assume that we are free to love without marriage. So let’s imagine Bob and Sue love each other and live together for many years. For reasons sufficiently important to them, they do not marry. Nevertheless, they want to execute agreements about how their assets will be divided should their relationship end. Currently, under North Carolina law, they can do so. If Amendment One becomes law, they cannot.
Similarly, Bob may want to give Sue his healthcare power of attorney. Currently, he can do so. After Amendment One, he cannot. Or let us imagine that Bob and Sue have lived together for many years and Bob wants to leave Sue a piece of property in his will, perhaps the very house they have shared during their lives together. Let’s also imagine that Bob has relatives who would like to have his house after he dies. Currently, absent some showing of fraud or coercion, these relatives would have a difficult time setting aside Bob’s bequest to Sue. But in a North Carolina where Amendment One is law, Bob’s relatives need only claim that Bob made his bequest to Sue because he loved her. A court could then void the bequest because it was the result of a domestic union that was not a marriage, the recognition of which would violate North Carolina’s (new) public policy. In this new North Carolina, Bob would have an easier time leaving his house to his cat than to the woman he loved. These scenarios seem absurd, and they are. Yet this is the North Carolina that Amendment One’s proponents in our state’s legislature are trying to create.
These scenarios might seem simply ridiculous to readers who do not believe they will be affected by Amendment One’s long arm. So to those readers I pose this question: Would you want to live in a North Carolina in which your daughter could be beaten up or otherwise abused by her boyfriend but could not obtain a domestic violence protective order restraining him? In Ohio, for example, where an anti-gay marriage amendment significantly more precise than the proposed N.C. amendment (and thus less open to bizarre judicial interpretations) passed in 2004, prosecutors and judges interpreted the “pro-marriage” amendment to do just that. For a three-year period, women and children endangered by “domestic partners” had no recourse to the law. Finally, the Ohio Supreme Court held that the amendment could not be used to deprive a class of people of the law’s protection. But that ultimate decision does not make up for the broken lives and broken bones that accrued in the meantime. If you are somehow of the impression that North Carolina’s elected judges will be more reasonable than Ohio’s judges, then you have likely had little contact with our justice system. In any event, are you willing to bet on your daughter’s life?
These concerns are acute for me because I am a lawyer. Of course, there is no requirement that North Carolina’s legislators be lawyers. And yet they cannot claim to be ignorant of the problems the Amendment poses, because many of us have been telling them for months. In response, they’ve gotten on TV or in the newspapers and called us lunatics or liars or both. They know the problems. We’ve told them. They know that many of the problems I’ve just pointed out to you have, in fact, occurred in other states with better drafted laws. The only conclusions I can draw from this about Amendment One’s legislative supporters is that they are either incredibly dim or they hate gays so much that they are willing to live with the collateral damage to everyone else. Neither possibility commends them as responsible legislators.
If you want an Amendment that bans same-sex marriage, demand that your legislators give you one. This is not that Amendment. The potential damaging and far-reaching consequences are too great. Vote “no,” and make them start again.