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
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:
- 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
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
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