Guest Post – Campbell Law School Professor Gregory Wallace challenges some of the legal arguments against Amendment One

This post is courtesy of Professor Gregory Wallace, who teaches constitutional law at Campbell Law School, with a concentration in free speech, church and state, and constitutional interpretation.  He received his J.D. degree from the University of Arkansas-Little Rock School of Law. He received the LL.M. and S.J.D. degrees from the University of Virginia School of Law. He also obtained an M.A. degree with honors from Dallas Theological Seminary. 

Professor Wallace asked if he could post on my site in order to offer an analysis of the legal issues of Amendment One that are different from some of the opinions held by other law professors in the State. On some issues, he agrees with other law professors, and on other issues, he disagrees.

This blog site has been about exploring the truth of Amendment One, which means listening to all sides in this debate.  It is in that spirit that I am posting his opinions.

Following this post by Professor Wallace, we will have a responsive post by UNC Law Professor Maxine Eichner.  I hope you enjoy the debate.

A big thanks goes to Landis for publishing this guest post. While he and I disagree about the meaning and potential effects of the proposed NC marriage amendment, we share a belief that NC voters are best served by having accurate legal information about the amendment. In that spirit, he has given me access to this forum, and I appreciate that. 

I am a law professor at Campbell University School of Law where I teach constitutional law. Recently, two colleagues, Professors Lynn Buzzard and William Woodruff, and I published a paper responding to claims made by Maxine Eichner, a professor at UNC School of Law, regarding the potential legal effects of the proposed amendment. Landis has provided a link to our paper for those who want to read our arguments in full. 

Most of you are familiar with Professor Eichner’s claims: the proposed NC marriage amendment will not just ban same-sex marriages, civil unions, and domestic partnerships, but also may affect all unmarried straight or gay couples by removing domestic violence protections for unmarried people, changing existing child custody and visitation laws, and barring other protections for unmarried persons relating to emergency medical decisions, hospital visitation, disposition of remains, trusts, wills, and end-of-life directives. These claims have been widely disseminated by both the media and amendment opponents, including family law professors at NC law schools and family law attorneys. 

While the apparent aim of the proposed NC amendment could have been stated with greater clarity, we do not think its terms justify these concerns. To begin with, we agree with those who say that the amendment goes further than just banning same-sex marriage. The amendment bars the state from recognizing or validating any other “domestic legal union” than heterosexual marriage. This includes both same-sex marriage and civil unions or domestic partnerships that constitute legal substitutes for marriage.

The question that has raised so much media attention and has been the subject of much of the recent public debate on the amendment, however, is whether the proposed amendment also applies to relationships that go beyond marriage or marriage-like unions, such as unmarried couples merely dating or living together. We respectfully disagree with Professor Eichner and others who think the amendment will bar legal benefits or protections for unmarried couples.

It is true, as amendment opponents claim, that the phrase “domestic legal union” has never appeared in NC statutes or judicial decisions. We do not believe, however, that is a reason to think that NC courts will assign unreasonably broad or bizarre interpretations to it.

The key term in the amendment is “union.” It limits the amendment’s application to only same-sex marriage and civil unions or domestic partnerships that closely approximate marriage. It does not apply to all relationships between unmarried couples, whether they are roommates, dating, or living together. Here are our reasons for interpreting the proposed amendment this way:

1.   The term “union” repeatedly has been used by NC courts to refer to the marital relationship. (See our paper for citations.).

2.   The term “union,” along with the terms “domestic” and “legal,” have been used in other state marriage amendments in ways that clearly limit those amendments to marriage and legal substitutes for marriage, such as civil unions or domestic relationships. Here are just two examples—there are more in our paper:

The North Dakota Constitution states that “[m]arriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”

The Florida Constitution states that “[i]nasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

3.   The term “union” also has been used to refer to civil unions and domestic partnerships in states like California where state legislatures have created such marriage alternatives.

4.   The term “union” has not been used consistently in NC or other states to refer to unmarried couples who are merely dating or living together.

5.   The common sense meaning of the term “legal union” does not include people who are merely roommates, dating, or living together. For example, nobody refers to a couple who is dating as having a “legal union.”

6.   The Idaho marriage amendment contains language almost identical to NC’s proposed amendment. The express intent of the Idaho amendment was summarized in the legislature’s “Effect of Adoption”:

It is intended to prohibit recognition by the State of Idaho, or any of its political subdivisions, of civil unions, domestic partnerships, or any other relationship that attempts to approximate marriage, no matter how denominated. The language is further intended to prohibit the State of Idaho, or any of its political subdivisions, from granting any or all of the legal benefits of marriage to civil unions, domestic partnerships, or any other relationship that attempts to approximate marriage. 

7.   None of the marriage amendments in 30 other states contain language or have been interpreted to make unlawful all relationships between unmarried couples. Opponents of NC’s proposed amendment have produced no evidence showing that it was intended to go beyond the scope of the amendments in every other state.   

8.   Courts generally are reluctant to strike down laws as unconstitutional. Under North Carolina law, it is well settled that “a statute enacted by the General Assembly is presumed to be constitutional.” A statute will not be declared unconstitutional “unless this conclusion is so clear that no reasonable doubt can arise, or the statute cannot be upheld on any reasonable ground.” (See our paper for citations.).

The inescapable conclusion is that the term “domestic legal union,” as used in the proposed NC amendment, is shorthand for same-sex marriage and civil unions or domestic partnerships that constitute legal substitutes for marriage. It cannot reasonably be interpreted to bar recognition of other relationships between unmarried persons.

No amendment opponent has offered a specific and persuasive refutation of our legal argument about the meaning of the proposed amendment. Family law professors at every NC law school, including Professor Eichner, issued a statement last Friday containing several conclusions but only one argument: “We are aware that some law professors at Campbell Law School think otherwise. In our view, 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.” (www.protectncfamilies.org/news/nc-family-law-professors-speak-out-against-amendment-one)

It’s not enough to argue, “Some law professors think this; other law professors think that; so, that proves either this or that could happen.” That’s like saying (with apologies to Duke football fans), “Some coaches think Alabama will be number one next season, while other coaches think Duke will be number one.” Both are not equally likely to happen; in fact, while it is theoretically possible that Duke could win the national championship, it is very, very unlikely to happen. You must examine the arguments behind the assertions. If a coach claims that Duke could wind up number one because it’s always possible that somewhere, somehow an All-American quarterback and wide receiver might transfer to Duke before the season starts, then such an “argument”—and the conclusion it supports—must be dismissed as unfounded speculation.

If the amendment bars only the legal recognition or validation of same-sex marriages or other relationships like civil unions or domestic partnerships that closely resemble marriage, then it’s passage will not affect unmarried couples and their protections under NC domestic violence laws or their rights to child visitation and custody, healthcare powers-of-attorney, devise property in wills, dispose of a deceased partner’s remains, etc.

This is most clearly seen with domestic violence laws. Here’s another point where we agree with Landis: the proposed amendment does not invalidate protections for unmarried couples and their children under NC’s domestic violence laws. To be sure, Landis argues that some NC district court judges may rule the other way, but we think that’s unlikely to happen.

Here’s why. Amendment opponents claim that what happened in Ohio could happen here. While worded differently, the Ohio marriage amendment—like the NC amendment—bars the state from creating or recognizing same-sex marriage or any other marriage-like statuses, such as civil unions or domestic partnerships, that approximate marriage. The confusion in Ohio was created by language in the state’s domestic violence laws protecting an unmarried person “living as a spouse” with the offender. Some lower courts held that giving protection to a person “living as a spouse” was unconstitutional under the amendment because it conferred upon that person an effect of marriage. The Ohio Supreme Court properly rejected that interpretation of Ohio’s marriage amendment and overruled those courts.

Unlike Ohio’s law, NC domestic violence statutes do not use the category of persons “living as a spouse,” and therefore are not susceptible to the same arguments that persuaded some Ohio lower court judges. Furthermore, the NC judiciary has the benefit of the Ohio experience and likely will not repeat it.

NC’s domestic violence laws protect broader categories of potential victims than are protected under Ohio’s laws. Several of those categories do not require the victims to have, or recognize them as having, a marital or marital-like “union” with the offender. NC’s protected categories include persons of the opposite sex who live together, people who have a child in common, current household members, and people of the opposite sex who are in a dating relationship. NC courts have applied the “household members” category to unmarried same-sex couples and the other categories to unmarried opposite-sex couples. Thus, the proposed NC amendment will not threaten domestic violence protections for unmarried partners because protecting persons who are dating or living together, or who have had a child together, does not confer on them the legal status of a “domestic union” and grant them the benefits, rights, and obligations of marriage (e.g., spousal support, inheritance rights, or the marital privilege). Put differently, simply acknowledging the fact that two persons are dating or living together does not recognize or validate a legal status that closely resembles marriage.

Under the same rationale, if the amendment passes, nothing will change in NC child custody or visitation laws because those laws depend on the relationship between the parent (or “de facto” parent) and the child, not on the custodians being married or having a marriage-like union. Similarly, other rights, benefits, and protections for unmarried partners will remain because they do not depend on the partners having a legal status resembling marriage. And, as we explain in our paper, NC public employers could continue providing health insurance coverage for domestic partners so long as the beneficiaries are not defined by criteria tailored to resemble an alternative to the legal status of marriage.

Amendment opponents claim that there will be extensive litigation in NC courts if the amendment passes. Except for Ohio, that has not been the experience in the 30 states that have marriage amendments. For example, marriage amendments in two states—Idaho, which has language virtually identical to the proposed NC amendment, and South Carolina, which Professor Eichner says contains language just as broad as the NC amendment—were enacted six years ago and there has been no court decision in either state interpreting the meaning of those amendments. In fact, in the majority of the 30 states which have marriage amendments, there are no reported appellate cases. Amendment opponents need to explain why they think NC’s experience will be different.

That’s not to say, of course, that there won’t be a district court judge here or there in NC who will give the proposed amendment a broad or bizarre interpretation—that’s always a possibility. But if we voted against constitutional amendments simply because some court might interpret them wrongly, we wouldn’t have any amendments to our federal or state constitutions, including our precious Bill of Rights and post-Civil War Amendments.

Some amendment opponents argue that greater clarity could have been achieved by proposing a narrower amendment that would bar only same-sex marriage, as is done under NC statutory law. Of course, the legislature then would be free to create domestic civil unions and or domestic partnerships with the same rights and benefits as heterosexual marriage and, as a result, expose the NC marriage amendment to the same constitutional infirmity that the Ninth Circuit identified in striking down California’s Proposition 8 marriage amendment. According to the Ninth Circuit, it is unconstitutional for a state to prohibit only same-sex marriage, but recognize same-sex civil unions that are functionally equivalent or nearly equivalent to marriage. The current proposed NC marriage amendment avoids this conflict with the federal Constitution.       

We don’t ask you to believe us just because we are law professors; we invite you to examine our arguments. Read our paper as well as the UNC law professors’ paper, along with the family law professors’ statement, and then decide who has the better-reasoned arguments—arguments that courts likely will adopt. 

Thank you for considering my comments and, again, a big thanks to Landis for posting them.

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