Q. Has the term “domestic legal union”, which appears in Amendment One, ever been defined by the NC courts?
A. No. Legal scholars agree on this point.
Q. Will the term “domestic legal union” require interpretation by the courts?
A. Yes. The NC Constitutional Amendments Publication Commission makes clear in its official statement for voters that the Courts will have to interpret the meaning of this term.
Q. Is the NC Constitutional Amendments Publication Commission a neutral body?
A. Yes, it is made up of the NC Attorney General, the NC Secretary of State and the General Assembly’s Legislative Services Officer, and it is charged with providing an official explanation of any constitutional amendment for voters.
Q. According to the NC Constitutional Amendments Publication Commission, is there a debate among legal experts about the impact that the term “domestic legal union” could have on unmarried couples of the same or opposite sex?
A. Yes, according to the Commission, the potential impacts debated by legal scholars include employment-related benefits for domestic partners, domestic violence laws, child custody and visitation rights and end-of-life arrangements.
Q. Does the second sentence of the Amendment, which provides private parties the right to enter into contracts, guarantee that all private contracts will be enforced?
A. The NC Constitutional Amendments Publication Commission says 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” and “the courts will decide the extent to which such contracts can be enforced”.
Q. Do legal experts agree that the Amendment, as currently worded, will prevent the legislature from approving civil unions?
A. Yes. In a paper published last week by three professors at Campbell Law School who disagree with professors at other law schools on some of the potential harms, they agree that “the proposed Amendment will bar not only same-sex marriages, but also recognition or validation of civil unions or domestic partnerships”.
Q. Does Amendment One have the potential to threaten harms to a broad range of NC families?
A. Three law professors at Campbell Law School, in their April 18, 2012 paper, argue that any such harms are unlikely. In an April 20, 2012 response to that paper, 11 family law professors at the 7 NC law schools, including Campbell, say otherwise. They say that a wide range of protections are threatened by Amendment One, including domestic violence protections and child custody law. They say that they are aware of the Campbell paper and disagree with it and that “this disagreement simply underscores the fact that Amendment One is vaguely worded and that it is not possible to know how broadly it will eventually be construed”.
Q. Could the potential for harms have been avoided by the drafters of Amendment One?
A. Yes, if the drafters had kept the focus on “marriage”, rather than “domestic legal unions”, these issues would not exist. The original House bill did provide that the marriage of one man and one woman shall be the only recognized “marriage” in the state, but the final language was changed to “domestic legal union”.
Q. How could these harms definitely be avoided?
A. If the amendment were voted down and the language of the amendment re-written to focus only on “marriage”, rather than “domestic legal unions”, then these harms would be avoided and the amendment truly would be the “marriage amendment”.
Q. How have domestic violence victims been impacted in other states by amendments similar to Amendment One?
A. In Ohio, it took three years before the Supreme Court ruled that the Ohio amendment did not restrict domestic violence protections. Along the way, a number of Judges threw out convictions, declaring the statute unconstitutional and denying protection to the victims of domestic violence.
Q. Is it certain that domestic violence benefits will be lost if Amendment One passes?
A. No. What is certain is that the possibility exists. Some judges may decide that unmarried cohabitants of the same or opposite sex are not entitled to domestic violence protection because they are in an illegal domestic union.
Q. How might child custody rights be impacted?
A. 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.
Q. What about the custody of non-marital partners who have acted as parents?
A. In one NC Supreme Court case, custody was awarded to a non-biological partner where the parties had agreed to create a family. Some scholars believe that such an agreement will be subject to challenge as an illegal domestic partnership if Amendment One passes.
Q. Will estate planning be affected for unmarried partners?
A. There is debate on this issue. On the one hand, wills and trusts are generally honored as long as they do not offend public policy. Some legal scholars believe that courts could find transfers between partners in illegal domestic partnerships to be subject to challenge. The risk is heightened where the documents make reference to a domestic partner arrangement not authorized by law. The right of private parties to contract provision in the amendment does not apply to wills and trust, because they are not contracts but directives.
Q. What about powers of attorney?
A. There is a debate on this issue. Generally, persons are allowed to appoint anyone they wish to serve as their agents in health related matters. According to one legal scholar, however, the Nebraska Attorney General concluded that allowing domestic partners the right to dispose of a deceased person’s remains violated the amendment prohibiting the recognition of same-sex relationships.
Q. Will domestic partner benefits given by municipalities be lost if Amendment One passes?
A. Highly likely. A Supreme Court decision in Michigan found that public employers could not provide health-insurance benefits to same-sex couples, because Michigan’s amendment did not recognize such relationships. Many legal scholars believe the same thing will happen in NC if Amendment One passes.
Q. So what are the definite effects of Amendment One?
A. The legislature will not be able to pass a law allowing civil unions or domestic partnerships short of marriage, and there will be uncertainty in the law that needs to be resolved by the courts.
Q. So what are the possible effects of Amendment One?
A. Loss of municipal partner benefits for unmarried same-sex and opposite sex couples and their children, domestic violence protections, child custody and visitation rights, and rights flowing from trusts, wills, and health care and end-of-life arrangements.