Last night I was with the Catholics at St. Peter’s Catholic Church. Tonight, I spent time with the Baptists at St. John’s Baptist Church.
Believe it or not, the two faith communities had a lot in common.
They both were attentive, respectful and interested in learning more about the Amendment. They both asked good questions and made insightful comments, and all of this talk and listening occurred, yes, in houses of worship.
I know, I know. People will say that I was visiting liberal churches in these two denominations. And to that I say, thanks for the clarification. Maybe that is why I was invited to speak on the legal issues of Amendment One. Maybe that is why they were so respectful, attentive and open-minded. Maybe that is why they were willing to consider that Amendment One might be about more than just marriage.
So what did I learn on this back to back speaking adventure? I learned that religion does have a place in this debate, but not necessarily the kind of place we see on the front page, where pastors and priests are proclaiming how their congregations “should” or “must” vote to align themselves with God. The houses of worship I visited were places of faith without theatrics, places where people let their faith guide them but not control them, and places where people were not afraid to listen to some of the facts about the Amendment.
Below is the PowerPoint I used for the discussion at St. John’s (I had to change the look to make it fit in this blog). In it, I provide details about the Amendment, and I discuss actual and possible harms of the Amendment. There are a lot of legal uncertainties, which in and of itself, is one of the potential harms. I hope you find this outline helpful.
Amendment One:The Facts
A St. John’s Baptist Church Discussion
NC Amendment One Truth
When and How
Q. When will the vote take place? A. May 8, 2012.
Q. How many votes does it take to pass or defeat the proposed amendment? A. 50%, plus one. A simple majority
The Devil is in the details
- Myth: The amendment is simply designed to protect marriage between one man and one woman.
- Myth: The amendment has no consequences beyond preventing gay marriage.
- Lesson: Read the amendment.
- Lesson: Don’t believe everything supporters say about the amendment.
The Proposed Amendment
Amend Article 14 – new Sec. 6. Marriage.
Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts. (emphasis added)
Q. What will the ballot ask voters what they are “for” or “against”?
A. “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”.
Existing NC Law
Q. Does the law in NC currently prohibit same-sex marriage?
A. Yes. NCGS 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)
Why the desire for the Amendment?
- A Constitutional amendment cannot be changed by the legislature.
- Supporters of the amendment fear what they call “activist judges”, meaning any judge who might strike down the current statutory prohibition on same-sex marriage on constitutional grounds.
The hidden attack on civil unions
Q. Does the amendment do more than prohibit same-sex couples from marrying?
A. Yes, If it passes, the legislature would be prohibited from approving civil unions short of marriage for same-sex couples.
Civil Unions v. Marriage
- 9 states allow civil union (or domestic partnership) recognition for same-sex couples.
– California, Delaware, Hawaii, Illinois, New Jersey, Nevada, Oregon, Rhode Island; Washington
- The laws in these states afford important legal rights to committed same-sex couples, similar to the rights granted married couples.
- Yet, the civil union laws in these states do not include recognition of same-sex marriage.
Examples of marriage rights that couldbe granted through civil unions
- 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
Might this be a trick question?
- Polling suggests that more than 50% of NC voters would be “for” the amendment, as they understand it.
- However, polling also shows that if the question asked was whether civil unions short of marriage should be available to same-sex couples, more than 50% would support that initiative.
Interesting legislative history
Original House Bill 777
- Marriage is the union of one man and one woman. No other relationship shall be recognized as a valid marriage by the State.
Original Senate Bill 106
- Marriage between one man and one woman is the only domestic legal union that shall be recognized in the State. (no second sentence)
Strange constitutional book-ends
Section 1 of NC Constitution
- We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.
Proposed last Article, last section
- Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. [Plus second sentence allowing the formation of private contracts]
Publication Commission Says:
- The term “domestic legal union” used in the amendment is not defined in North Carolina law.
- There is debate among legal experts about how this proposed constitutional amendment may impact North Carolina law as it relates to unmarried couples of same or opposite sex and same-sex couples legally married in another state, particularly in regard to employment-related benefits for domestic partners; domestic violence laws; child custody and visitation rights; and end-of-life arrangements.
- The courts will ultimately make those decisions.
Publication Commission Also Says:
- The amendment also says that private parties may still enter into contracts creating rights enforceable against each other. This means that unmarried persons, businesses and other private parties may be able to enter into agreements establishing personal rights, responsibilities, or benefits as to each other.
- The courts will decide the extent to which such contracts can be enforced.
Lesson from the Commission
- This amendment creates uncertainty in the law.
- This amendment could negatively impact unmarried couples of the same and opposite sex.
- This amendment could negatively affect children.
- This amendment will lead to litigation.
Quick Comparison Among States
- Six states allow same-sex marriage
– By legislature (New York, Vermont, New Hampshire)
– By Court (Massachusetts, Connecticut, Iowa)
– District of Columbia also allows.
- 37 states have laws declaring marriage to be between one man and one woman.
- 30 states have various forms of Constitutional amendments restricting marriage to one man and one woman.
Comparison of Amendment Types
- A number of State amendments focus on marriage only for one man and one woman, and do not bar same-sex civil unions.
- Some State amendments prevent same-sex marriage and any equivalent status like a civil union or domestic partnership.
- Only a few states have language like is as broad as the NC language (i.e. Idaho) – “only domestic legal union…valid or recognized…”.
Definite Impacts of Amendment One
- Legislature cannot pass law to allow same-sex marriage.
- Legislature cannot pass law to allow any civil unions or domestic partnerships that offer similar marriage benefits to same-sex couples without calling it marriage.
- Municipalities can no longer provide domestic partner benefits to unmarried couples (same-sex and otherwise)
- There will be uncertainty in the law and potential for other harms caused by the amendment.
Potential Impacts of Amendment One
(for all unmarried couples)
- Has potential to invalidate domestic violence protections.
- Has potential to interfere with child custody and visitation rights.
- Has potential to invalidate trusts and wills.
- Has potential to invalidate health-care powers of attorney and end-of-life directives in favor of unmarried partners
Potential Business Impact
- Amendment One could be bad for business.
- An overwhelming majority of Fortune 500 companies prohibit discrimination on the basis of sexual orientation.
- NC Business leaders, republicans and democrats, have come out against Amendment One.
- If the amendment fails to pass, NC will set itself apart from all other Southern states as being more inclusive and open to diversity.
Are the alleged threats real?
To religious freedom: Churches will not be required to marry same-sex couples. The law respecting separation of church and state prevents the state from telling churches who they decide to marry based on their religious beliefs.
To heterosexual marriage: Statistics show that same-sex civil unions or same-sex marriage will not be a threat to marriage between one man and one woman. States with high divorce rates among heterosexual couples have marriage amendments, while states with low divorce rates among heterosexual couples do not.
Education is critical
- Voters should know that they are voting on more than just same-sex marriage.
- Voters should know that there already is a NC law prohibiting same-sex marriage.
- Voters should know that families will lose benefits if the amendment passes.
- Voters should know about other harms that will and might be caused by this amendment.
Can one be against same-sex marriage and against the Amendment?
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).
Truth and Consequences
- 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, many will be affected and there will be lasting pain and lingering uncertainty.
- Cowboys Are Frequently, Secretly Fond of Each Other” – Willie Nelson
- Should anyone’s religion be embedded in our constitution?
- Legal prejudice will not prevail in the long run – let “Loving” be our guide