Guest Post – UNC Law School Professor Maxine Eichner responds to the Amendment One legal analysis of Professor Wallace

This is a post courtesy of UNC law school professor Maxine Eichner, in which she responds to a recent post by Campbell law professor Gregory Wallace on the legal issues of Amendment One.

Professor Eichner attended Yale College and Yale Law School and she  has a Ph.D. and M.A. from the University of North Carolina at Chapel Hill.  She  joined the faculty of the UNC-Chapel Hill School of Law in January 2003 after practicing law in the areas of civil rights, women’s rights, and employment law. Her teaching interests include sex equality, family law, legal theory and torts

Dear Landis,

Thank you for giving me the chance to respond to Professor Wallace’s post.   Certainly much of it, and the paper that Professor Wallace coauthored with Professors Buzzard and Woodruff, I agree with: 

–this amendment could have been stated with more clarity (p. 1);

–its prohibitions will be significantly broader than our current ban on same-sex marriage in North Carolina law, invalidating not only same-sex marriage, but civil unions and domestic partnerships (p.2);

–courts will ultimately need to resolve the issue of its scope (p.7);

–and predicting with any certainty how they will do so is impossible (p.7). 

Furthermore, I agree that citizens need to take into account the fact that family law professors at every law school in the state, including Campbell, disagree with the conclusions of the Buzzard paper, and they also need to weigh the quality of the arguments in the UNC paper against the quality of arguments in the Buzzard paper.   (I use the term “Buzzard paper” rather than “Campbell paper” because Prof. Jean Cary, Campbell’s family law professor, has specifically asked that the paper not be referred to as the “Campbell paper,” since she and other Campbell Law professors disagree with it.)

To help readers assess the quality of the arguments made in the Buzzard paper, my comments center on its key contention.  My co-authors at UNC and I had stated in our paper that the Amendment’s use of the term “domestic legal union,” and its ban on recognizing such unions, could be construed by courts to bar giving legal effects to any unmarried couple relationship other than marriage.  The central contention of the Buzzard paper is that courts would not construe the term so broadly.  In the Buzzard paper’s words:

While the precise phrase “domestic legal union” is neither defined in the proposed Amendment nor heretofore has been used in North Carolina law, it plainly refers to marriage or marriage imitations or substitutes. The key term is “union”—not domestic “relationships,” as Professor Eichner argues. The Amendment does not forbid the legal recognition or validity of all domestic relationships, but only of domestic “unions.” The flaw in Professor Eichner’s analysis is that she does not give the term “union” its proper effect in limiting the Amendment’s reach. 

The authors then contend that the term “union” will be construed narrowly to mean “marriage-like relationships” based on the following: 

North Carolina courts frequently have used the term “union” to describe the marital relationship. Black’s Law Dictionary defines marriage as the “[t]he legal union of a couple as spouses.” Thus, in the context of the proposed Amendment, a “domestic legal union” is a marriage or legal status resembling marriage.

There are a number of problems with this argument, but let me point out three:

  1. The Buzzard Paper Uses Flawed Logic To Construe The Term “Union” Narrowly

Recognize that the Buzzard paper authors don’t use the Black’s Law Dictionary definition of the term “union” to determine the meaning of the word (since this definition is unhelpful), but instead rely on the fact that the term “union” is used in the definition of the term “marriage.” Similarly, they rely on the fact that North Carolina courts sometime describe marriages as “unions” to support their point. 

This argument contains a fundamental logical error: The Buzzard paper authors seek to define the scope of the term “union” based on the fact that they can identify one member (marriage) of the category that comprises the term “union.”  But knowing a single member of a particular category tells us little to nothing about how broadly to define the scope of the category.  To follow this logic, if we didn’t know what the term “fruit” meant, but found in the dictionary that an apple was “a fruit with red skin,” we could then determine that an orange wasn’t a fruit because it wasn’t apple-like.  The fact that the Buzzard Paper authors grasp at such a slim reed shows exactly how difficult it is to pin down a definition of the term “domestic legal union,” and highlights the uncertainty of the scope of the amendment. 

2.  The Buzzard Paper Reads Language Into Our Proposed Amendment That Amendments In Other States Possess, But That Our Amendment Does Not

   Professor Wallace goes on to say in his post to say that:

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.”

I couldn’t agree with Mr. Wallace more on this point.  It is the fact that our amendment lacks the language banning recognition of “domestic legal unions” only when they are equivalent to marriage that makes our amendment’s language potentially broader than marriage amendments in almost every other state.  Construed literally, our amendment would bar any recognition of “domestic legal unions” whatsoever, whereas these other states bar only recognition that rises to the level of marriage.

The presence of this limiting language in other states has been critical to restricting the scope of their amendments.  Consider the case in which the Kansas Court of Appeals held that its state’s domestic violence protections were not invalidated by its state amendment, Kansas v. Curreri,  42 Kan. App. 2d 460; 213 P.3d 1084 (2009).  Kansas’s amendment states  that “No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.”   In upholding the constitutionality of its domestic violence protections, the Kansas Court of Appeals stated:

It is noteworthy that the constitutional amendment does not refer to “a right or an incident of marriage.” Its reference to “the rights or incidents of marriage” obviously refers not to an isolated right that a married person may share in common  with nonmarried persons, but rather the “bundle of rights” that identifies marriage as a distinct and separate institution. This provision in the amendment seeks to cut off attempts to circumvent the amendment’s definition of marriage by those seeking recognition of a relationship, other than between one man and one woman, which otherwise purports to bear all the hallmarks of a conventional marriage.

In failing to include the “rights or incidents of marriage” language, or other language that bars recognition only of statuses that grant an equivalent bundle of rights to that accorded marriage, North Carolina’s amendment leaves open the possibility that it will be construed to forbid recognition of a relationship that is accorded any of the hallmarks of marriage.

3.   The Michigan Supreme Court’s Interpretation  Undercuts the Buzzard Paper’s Contention

The Michigan Supreme Court’s interpretation of the term “union” in its constitutional amendment also belies the central claim of the Buzzard paper.  Michigan’s amendment states that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”  In construing the amendment to preclude public employers from offering health insurance benefits to their employees’ domestic partners, the Michigan Supreme Court stated: 

The pertinent question is . . . whether the public employers are recognizing a domestic partnership as a union similar to a marriage. A “union” is “something formed by uniting two or more things; combination; . . . a number of persons, states, etc., joined or associated together for some common purpose.” Random House Webster’s College Dictionary (1991). Certainly, when two people join together for a common purpose and legal consequences arise from that relationship, i.e., a public entity accords legal significance to this relationship, a union may be said to be formed.

Note that the Court referred to the relationship, rather than the legal status, as the “union,” contradicting the Buzzard paper’s contention.  The Michigan high court then held that the fact that the state granted these relationships only health insurance benefits, rather than the full range of benefits granted through heterosexual marriage, would not save the challenged policies from the amendment’s prohibition. Instead, the Court held, any benefits accorded to a relationship by the state or its affiliates would constitute unconstitutional recognition of the union in violation of the amendment, so long as the relationship at stake was a non-marital conjugal relationship:

[T]he pertinent question for purposes of the marriage amendment is not whether these relationships give rise to identical, or even similar, legal rights and responsibilities, but whether these relationships are similar in nature in the context of the marriage amendment . . ., i.e., for the purpose of a constitutional provision that prohibits the recognition of unions similar to marriage “for any purpose.” If they are, then there can be no legal cognizance given to the similar relationship. Id. at n.6

In sum, the takeaway point of this whole exercise is that none of us can predict how courts will eventually decide to interpret the vague and untested language of our proposed constitutional amendment. 

Best,  Maxine Eichner 

Post script by Landis Wade:  Just as I linked the full papers for Professor Wallace, the full papers and articles written by Professor Eichner can be found under her biographical information at this link:
 

Also, additional information pertinent to this debate is the Statement referred to by Professor Wallace in his blog post that was signed by 12 law professors at all 7 NC law schools, after the report he and his colleagues prepared.

STATEMENT FROM FAMILY LAW PROFESSORS ACROSS THE STATE

We are family law professors who teach at every law school in the state of North Carolina. We speak on behalf of ourselves, rather than our institutions. Based on our professional expertise, the language of the proposed North Carolina amendment is vague and untested, and threatens harms to a broad range of North Carolina families. The amendment is phrased more broadly than most similar amendments in other states, and would therefore likely be construed by courts more broadly than in other states. The amendment would certainly ban same-sex marriages, civil unions, and domestic partnerships, and would very likely ban the domestic partnership health insurance benefits that a number of municipalities and counties currently offer to same- and opposite-sex unmarried couples. It also threatens a range of other protections for unmarried partners and their children, including domestic violence protections and child custody law. 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.

April 20, 2012

Jean Cary Professor of Law Campbell Law School

Scott Sigman Associate Professor Charlotte School of Law

Katharine Bartlett A. Kenneth Pye Professor of Law

Kathryn Bradley Professor of the Practice of Law Director of Legal Ethics

Carolyn McAllaster Clinical Professor of Law Director, Duke Legal Project

Duke Law School

Sonya Garza Assistant Professor Elon School of Law

Kia H. Vernon Assistant Professor of Law North Carolina Central School of Law

Maxine Eichner

Reef C. Ivey II Professor of Law

Holning S. Lau Associate Professor

UNC School of Law

Jennifer Collins Professor of Law

Suzanne Reynolds Executive Associate Dean and Professor of Law

Wake Forest School of Law

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8 Responses to Guest Post – UNC Law School Professor Maxine Eichner responds to the Amendment One legal analysis of Professor Wallace

  1. W.A. Woodruff says:

    Landis,
    Thank you for facilitating this dialogue. In the end what we say here may change no one’s mind, but at least the public can see how a discussion over differences can be conducted in a respectful and gracious manner. In our current political climate that itself is a laudatory goal. It is also an opportunity for non-lawyers to get a glimpse of how law professors discuss issues. For the lawyers who read this blog it may conjure up nightmares from law school!
    As I understand Prof. Eichner’s argument, the lack of limiting language in the proposed amendment leaves the term “domestic union” open to such a wide range of interpretations that judges in subsequent litigation may seize upon one of those broader interpretations to strike down domestic violence protections for abuse victims and invalidate other long-recognized and well-understood rights applicable to all citizens, such as the right to dispose of one’s property by testamentary devise. Though she has not claimed this, following her argument to its logical conclusion would mean that Amendment One would invalidate labor unions in NC. They are “domestic” in the sense that they are in the United States and not overseas. They are “unions” in the sense that they consist of individuals joined together in a common purpose. And, obviously, they consist of more than one man and one woman. To my knowledge, not even the most ardent opponents of Amendment One have made such an argument. Why not? It is patently absurd, though consistent with the logic of claiming the lack of limiting language leaves the proposed amendment vague, ambiguous, and open to any interpretation one wishes to apply.
    If Prof. Eichner has not extended her argument to that end, it must be because she has found some limiting principles inherent in the language of the proposed amendment that would prevent such a silly result. Her limiting language is that “domestic union” applies to any unmarried non-conjugal relationship. But that language is not found in the proposed amendment, either. It must be from an extrinsic source that she believes is sufficiently reliable and authoritative that NC courts would adopt it and not go even further to invalidate, for example, labor unions. In other words, she draws upon extrinsic material to fashion a limiting provision.
    We do the same thing. The difference is that our arguments for limiting principles draws upon the methods courts typically use when called upon to interpret a constitutional provision that, arguably, invalidates a statute. First, courts typically approach constitutional adjudication with the presumption that the statutory provision under review is constitutional. This reflects a healthy respect for the separation of powers between the judicial and the legislative branches of government. Second, courts typically look for the narrowest interpretation, not the broadest, when the issue is whether the constitution and a statutory provision are in conflict. Third, when dealing with language that is ambiguous, and for the sake of discussion let’s concede that the proposed amendment has some inherent ambiguity, courts typically look at the context of the adoption and the understanding of the ratifiers in determining the meaning to apply to an ambiguous term. We set out in some detail how those principles of constitutional adjudication should apply in the present setting and conclude that it is most likely courts will limit the “domestic union” language to marriage-like or marriage-substitutes and will not apply it to all unmarried conjugal relationships, or labor unions. This will, of course, preclude the legislature from creating marriage-like domestic partnerships or civil unions that some other states have adopted.
    Since NC domestic violence protections and testamentary rights are not limited to just a marriage or a marriage like relationship, or even to unmarried conjugal relationships, the likelihood that a NC judge would so construe the proposed amendment to invalidate the statutory protections for victims of domestic violence and the right of the testator to dispose of property in accordance to his or her wishes in accordance with the statute of wills is far-fetched, to say the least.
    We have proposed a rational and reasonable interpretation of the phrase “domestic union” that NC courts will most certainly adopt when faced with the issue. Ultimately, the question is whether the NC courts will abandon well-settled principles of constitutional adjudication, reject a reasonable and narrow interpretation that is consistent with the language of the amendment and preserves long-standing and well-understood protections and provisions of law, and seize a upon an interpretation that is limited only by some unarticulated arbitrary stopping point. Perhaps we have more confidence in our courts than does Prof. Eichner and the Family Law Professors. We think the courts will take the more reasonable and rationale approach to resolve any perceived ambiguity in the proposed amendment, should the case ever arise, and preserve the rights and protections that we have all come to enjoy and rely upon.
    Perhaps the real takeaway point in this exercise is not to see who can come up with an interpretation that will do the most damage and bring to bear the most unintended consequences. Perhaps we should be trying to find the most reasonable, logical, and likely interpretation the courts of NC would apply. We agree that no one, not us, not the UNC faculty, the family law professors, practicing lawyers, or legal pundits can say with absolute certainty how a given judge will rule in a given case. We can, and should, however, provide the citizenry with our best analysis of what we think judges should do and will likely do should the amendment pass. My hope is that Prof. Eichner and her colleagues at UNC, along with the Family Law Professors in this state, will urge courts to adopt our construction of the amendment, if it passes, and they are called upon to represent an unmarried victim of domestic violence or a testator in a will contest who left his estate to his gay partner or opposite sex lover.
    Again, Landis, thanks for facilitating this discussion.

    William A. Woodruff
    Professor of Law

  2. Janice Bryant says:

    Professor Woodruff says in his post, “for the sake of discussion let’s concede that the proposed amendment has some inherent ambiguity” and “[w]e agree that no one . . . can say with absolute certainty how a given judge will rule in a given case”. I know how we can say with absolute certainty that this amendment will not harm families or children, will not invalidate domestic violence protection orders, will not take health insurance away from children: defeat Amendment One!
    Janice Bryant

  3. Scott Sigman says:

    Landis,

    I, too, would like to add my thanks to you for facilitating this discussion. I write to make just one brief point. Professor Woodruff calls on those of us who teach Family Law in NC–all of whom have expressed disagreement with the conclusions drawn by him and a couple of his collegues at Campbell–to encourage courts to adopt their construction of the Amendment. But that we should have to do so to protect some of the categories of individuals mentioned in the above-post only underscores the potential harms of this Amendment and typifies the very point Family Law professors have been making. This Amendment could have been written in the most basic of terms to accomplish its purported goal–and the state legislature has demonstrated its ability to do just that when drafting the statute banning same-sex marriage. That it took a very different route in drafting this Amendment suggests, at least to me, that a court would be acting quite rationally and reasonably in giving the Amendment its broadest interpretation which, in turns, raises each of the harms outlined in Professor Eichner’s well-reasoned analysis.

    To the average NC voter who is untrained to wade through cumbersome legal analysis, I fear that even the most basic points become muddied. To me, the “take away” from the exchange is simple: if prohibiting same-sex marriages and/or same-sex domestic partnerships in NC is the aim of this Amendment, then voting against it is the prudent route so that the legislature is rightly burdened with drafting clear language that does precisely that, and nothing more.

    With gratitude to you,

    Scott Sigman
    Associate Professor

  4. Gregory Wallace says:

    Just a few brief comments in reply to Prof. Eichner:

    Professor Eichner claims that our paper uses “flawed logic” to construe the term “union” narrowly. She argues that just because “union” includes marriage, it does not follow that it excludes other unmarried relationships.

    That’s a fair point. But our argument that the term “union” should be understood to refer to marriage or marriage substitutes and not to any relationship between unmarried couples does not turn upon the single fact that NC courts have used the term “union” to refer to marriage. Rather, our argument is based upon several facts, as explained in our paper and summarized in my guest comment. We begin by showing that in NC and elsewhere, the term “union” has been used in marriage amendments, laws, and judicial decisions to refer to marriage or marriage substitutes such as civil unions or domestic partnerships. We then point out that “union” is not regularly used—either in legal or common sense—to refer to other unmarried relationships. Our argument thus both includes and excludes certain members of the category.

    Professor Eichner has a logic problem of her own: begging the question. Her fruit example works only if an orange is a “fruit.” While it’s been established that an orange is a “fruit,” Professor Eichner and the family law professors have not shown how any unmarried couple relationship is a “legal union.” They merely assume it.

    The Michigan case held that health insurance benefits provided to domestic partners were unconstitutional under the state marriage amendment, so long as those partnerships were “unions similar to marriage,” not just “non-marital conjugal relationships,” as Professor Eichner claims. The court didn’t even mention “non-marital conjugal relationships,” much less hold that the Michigan marriage amendment applied to such relationships.

    Again, thanks to Landis for creating this discussion and to Professor Eichner for her response.

    Professor Gregory Wallace

  5. Bob Bollinger says:

    As both a voter and a lawyer (Campbell ’88) I appreciate the “respectful and gracious” discussion on this page by thoughtful, smart people who just happen to disagree. Professor Woodruff, I have practiced law in the General Courts of Justice (including the appellate division) for the past 24 years and I am afraid I share the lack of confidence displayed by the Family Law professors. I think based on my experiences over the years that there is a substantial chance that our courts will not interpret this Amendment in such a way as to preserve our Chapter 50B protections for abused women who are not married to their abuser. My preference would be for the voters to vote this down, and let the legislature start over with a more narrowly and more cleanly drafted amendment. The legislature has the benefit at this point of much thoughtful outside analysis, such as the work of the Professors participating in this thread, and I suspect the Legislature could write a much cleaner amendment next time around.

  6. W.A. Woodruff says:

    Mr. Bollinger,

    I respect both your experience and the perspective born of that experience. If your perspective is widely held then it suggests we have a problem in NC that far exceeds the scope of a proposed consitutional amendment. It means we have a judiciary that does not consider itself bound by the cannons of construction that routinely guide courts when adjudicating issues of this sort. It means we have judges who will adopt the broadest interpretation of a provision in order to strike down protections for domestic abuse victims even when there are reasonable alternative interpretaions that would preserve those protections and no evidence that the legislature or the people intended for those protections to be stripped away. It means we in the legal academy have failed to train lawyers, who ultimately become judges, that donning the black robe does not free them to pick any interpretation of a consitutional or statutory provision, unconstrained by principles of construction commonly applied by courts down through history. It means that we legal academics have failed to impress upon our students the difference between law school classroom exercises where we push students to think broadly, critically, and creatively, and the application of commonly understood and accepted principles of legal reasoning that must constrain judges when adjudicating real issues between real parties with real consequences. Perhaps identifying this problem is yet another “unintended consequence” of this amendment process and public debate.

    Thanks for raising it.

    W.A. Woodruf
    Professof of Law

  7. W.A. Woodruff says:

    In my post this morning “consitutional” should be constitutional and “interpretaions” should be interpretations. I posted before I proofed. Sorry.

    W.A.Woodruff

  8. Ishi Varty says:

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    might as well check things out. I like what I see so now i am following you.
    Look forward to looking over your web page repeatedly.

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