Guest Post – A Legal Analysis of Amendment One by Family Law Professor Suzanne Reynolds

This post is courtesy of Family Law professor Suzanne Reynolds of Wake Forest University School of Law, where she also serves as Executive Associate Dean Academic Affairs.

Suzanne Reynolds is widely respected for her scholarship and teaching about family law and for her public service. She was a principal drafter of statutes that modernized the law of both alimony and of adoption, and she co-founded a domestic violence program that received national recognition by the ABA for providing legal assistance to the poor.

Suzanne authored a three-volume treatise on North Carolina family law that has become the authoritative source for law students, lawyers, and judges, and for many years she has taught the family law portion of the bar review course.

She was the recipient of a Distinguished Woman of the Year award presented by Governor Hunt in 1998 and of the Gwyneth B. Davis award for Public Service presented by N.C. Association of Women Attorneys in 1996.

Suzanne has been a frequent speaker on Amendment One and was kind enough to share these materials, which she has used to make presentations to numerous audiences. In these materials, she breaks down some of the legal issues of Amendment One. 

It is helpful to note that Suzanne’s opinions are consistent with those of UNC Law professor Maxine Eichner, who has posted on this site and who is widely recognized for her legal analysis of Amendment One.  It also is consistent with the comments of Charlotte Law School professor Scott Sigman, who has commented on this site and who also has spoken to numerous audiences about Amendment One.

Amendment One:
The View from a Family Law Professor: Suzanne Reynolds

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).

The Ballot 

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.”  [Note the absence of the second sentence.] 

Consequences to unmarried families – straight or gay

Background

3 kinds of amendments among the 30 marriage amendments:

(1) Ban same-sex marriage only (10 states)

“The only marriage this state may recognize is a marriage between a man and a woman.”

(2) Ban same-sex marriage and domestic partnerships and civil unions

(17 states)

“The only marriage this state may recognize is a marriage between a man and a woman.  The state may not create any other legal status to approximate a marriage.”

(3) Ban same-sex marriage, domestic partnerships and civil unions, and recognition of other rights for domestic partnerships (3 states)

Only Michigan, Idaho, and South Carolina – and NC if it passes Amendment One.

Consequences to unmarried families – straight or gay

1.    NC cannot pass legislation allowing for the registration of domestic partnerships or civil unions and granting some rights for  these couples after registration.  

2.    Public employers cannot recognize benefits for the domestic partners of their employees (the State of NC; state universities; public hospitals, municipalities, etc.).

Michigan: “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.”  (Mich. Const. art. I, § 25) National Pride at Work v. Michigan, 481 Mich. 56, 60, 748 N.W.2d 524, 530 (2008)(public employers may not provide health insurance benefits to domestic partners of their employees).

Idaho: “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”  (Idaho Const. art. III § 28 City of Moscow, Health Insurance Policy, Idaho Op. Att’y Gen. 9 (2008)).

3.    Passage of the amendment would jeopardize the recognition of the protection of the domestic violence laws to unmarried couples.   

Domestic violence law:  special protections for violence in the home because the criminal law was simply inadequate; special staffing for victim assistance; pro se friendly;                   expedited procedures;  special arrest provisions; special bail provisions; shelters

But, must be in a “personal relationship” : married or have been; never married couples, same-sex or different sex; dating relationship

What if the personal relationship is an “illegal domestic union”?  Does it violate public policy to rely on an “illegal domestic union” as the “personal relationship” that entitles a person to use the extraordinary remedies of the law of domestic violence?

The Ohio amendment:  a category 2 amendment.

–Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage. (Ohio Const. art. XV, § 11).

–3 years of denying domestic violence protection to victims in Ohio who were not married to their batterers (in gay or straight relationships).

The NC amendment:  a category 3 amendment.

–Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.

–Can a “personal relationship” that is an “illegal domestic union” provide the basis for the extraordinary remedy afforded by domestic violence legislation?

4.     Will the law of custody favor a parent who is married over a parent who lives in an “illegal domestic union”?   

E.g.  After Mom and Dad split up, Child lives with Mom.  At some point, domestic partner moves in with Mom.  Later Dad re-marries.  In a custody dispute, of what significance will it be that Mom lives in an “illegal domestic union”?

Or  Mary and Molly live together.  Molly conceives by assisted conception, and they raise Child as equal parents.  If Mary and Molly split up, may the court recognize parental rights in Mary, the non-parent, even though she was in an “illegal domestic union”?

Consequences to unmarried families – straight or gay

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.  These are some of the consequences:

1.   NC cannot pass legislation allowing for the registration of domestic partnerships or civil unions and granting some rights for  these couples after registration. 

2.    Public employers cannot recognize benefits for the domestic partners of their employees.

3.   It jeopardizes the use of domestic violence laws for unmarried couples.

4.   It raises questions about whether the law of custody will disfavor parents in an “illegal domestic union.”  

5.   It raises questions about whether private employers can continue to give benefits to the domestic partners of their employees. 

6.   It raises questions about whether the state will give effect to official forms naming an unmarried partner. 

 In conclusion, a vote against Amendment One

–Does not change the law on same-sex marriage:  remains against the law of NC

–Allows duly elected legislators to consider at some point in the future whether to recognize domestic partnerships or civil unions

–Protects NC families with the current law of public employer benefits, domestic violence, and child custody

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One Response to Guest Post – A Legal Analysis of Amendment One by Family Law Professor Suzanne Reynolds

  1. susan grote says:

    I am not an attorney, but just want to say how grateful I am to the many law professors and practicing attorneys who have taken a stance on this important issue. You should be commended because many businesses and professionals have not done so. You have all helped educate people on how this Amendment will affect families across our state. Regardless of the outcome on this vote, this blog has changed many minds and broadened many views. I am remaining hopeful of Amendment One’s defeat on May 8th.

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