Votes on Amendment One by County, City and Town Boards – Is it just politics, or is there more at stake?

County, city and town boards across the state have been passing resolutions for and against Amendment One.

When the vote is a unanimous vote for or against the amendment, you can tell something about the constituency of the municipal body.

Typically, the leaders of the municipalities that overwhelmingly support Amendment One will tell us after the vote that it was important for the elected leaders to stand up and protect the time-honored institution of marriage.

Usually, the leaders of the municipalities that overwhelmingly oppose Amendment One will tell us after the vote that it was important to stand up for the rights of all their citizens.

Some people tend to believe that Republicans are for Amendment One and Democrats are against Amendment One.  Some like to say that Conservatives are for Amendment One and Liberals are against it.

The truth is that Amendment One is neither a Republican or a Democrat, and people on both sides of the political aisle have opposing views within their own parties.

Appalachian State professor Karl Campbell gave an interesting perspective about the political parties in NC at a recent forum on Amendment One in Charlotte.  He said that calling people Republicans and Democrats, or Conservatives and Liberals, is not the right way to think about political parties or ideologies for North Carolinians.  He said that we have broken down over time as either Traditionalists or Modernists.  Labels like liberal and conservative can be misleading and inflammatory.  These other labels are less critical and are more accurate, he says, because over time, the NC Traditionalists are the ones who have wanted to maintain the status quo and the NC Modernists have been the ones who wanted to embrace change.

Professor Campbell did not speak to this point, but it occurs to me that churches often are either Traditionalists or Modernists, with some falling somewhere in-between.  The best example of the Traditionalist church is the Catholic Church.  The Unitarian Church is a good example of the Modernist church.  Other churches fall somewhere in-between, and Baptist churches are all over the board, because their leadership usually comes from the ground up and not the other way around.

You can say the same thing about the political pockets in the landscape of NC known as our counties, cities and towns.  These elected bodies are sometimes heavy on Traditionalists or heavy on Modernists, depending upon their location within the state.  Rural areas lean toward the Traditionalists.  More urban areas lean toward the Modernists.

By the way, as Professor Campbell explained, it was the Traditionalists in NC who were in favor of (and who won the vote) on the issue of separate but equal schools in the 1950s, in order to maintain segregation of the races.  It was the Modernists in NC who were for (and who won the vote on) the issue of allowing Darwinism to be taught in the public schools of NC, in order to expand public education beyond the teachings of the Bible.

Debates like Amendment One are like the debates we had on race relations and teaching science in the public schools.  They can bring out the best and worst in the Traditionalists and the Modernists.

Neither side has patience for what they perceive to be the backward thinking of the other. There are perceived and actual threats on all sides.

Traditionalists fear threats to their way of life as they know it.  Modernists feel threats to the world around them if “the people” refuse to accept change.  I liken this feeling to the thinking of the main character in the movie Shawshank Redemption, who said: “We can either get busy living, or get busy dying”.

More often than not, the votes by elected officials on Amendment One break neatly along party lines.  Republicans often vote for the amendment because of their Traditionalist base. Democrats typically vote against Amendment One because of their Modernist base.

This week, the Mecklenburg County Board of Commissioners passed a resolution opposing Amendment One, and did so largely along party lines.  It was a 5-4 vote.

In a letter to the editor in the The Charlotte Observer on May 3rd, the writer complained that Amendment One was none of the Mecklenburg County Board’s business, meaning it had no business wasting taxpayer money debating and voting on the issue.

In part, I agree with the writer.  I agree, because in some counties, this is called pandering to the base in an election year.  On the other hand, Mecklenburg County and its employees have a stake in this vote unrelated to marriage.  That stake is one of those pesky bi-products of Amendment One that the “vote yes for marriage” message seems to ignore.

What I am talking about is domestic partner benefits.

I already covered in length the threat to domestic partner benefits offered by municipalities in a previous post.

In that post, I used Mecklenburg County’s experience as one example of how municipalities structure those benefit programs.

Just a few years ago, Mecklenburg County adopted a policy that extended  ”benefits to same-gender domestic partners”, which it defined as “two individuals of the same-sex who have reached the age of majority and live together in a long-term relationship of indefinite duration, with an exclusive mutual commitment in which the partners share the necessities of life and are financially interdependent” and who are “not married to anyone else, do not have another domestic partner, are legally prohibited from marrying each other in the state of N.C., and are not related by blood more closely than would bar their marriage in this state”. Employees seeking Domestic Partner benefit coverage are required to complete an Affidavit of Domestic Partnership, including verification of the existence of the partnership for one year, and supply evidence of joint financial documents, joint mortgage or lease, or other similar verification in the affidavit.

In other words, in Mecklenburg County, and in other municipalities, the relationship that affords same-sex partner benefits requires a committed relationship akin to marriage.

Family law professors in this state are of the opinion that Amendment One will prevent Mecklenburg County and other local governments from continuing to offer domestic partner benefits to same-sex couples based on their committed relationships akin to marriage.  This is because the only domestic legal union that will be recognized by Amendment One is the marriage between one man and one woman.

The law professors who reach this conclusion base their opinions on the wording of Amendment One and on a Michigan Supreme Court case, known as National Pride at Work, Inc. v. Governor of Michigan, et al, 481 Mich. 56, 748 N.W.2d 524 (2008).  In that case, the Court concluded that the Michigan amendment, which states that the union of one man and one woman in marriage shall be the only agreement recognized in marriage or a similar union for any purpose, ” prohibits public employers from providing health insurance benefits to their employees’ qualified same sex-sex partners”.

The Michigan Court analyzed at length the reason the benefits were being provided and whether because of those reasons, there was an improper recognition of a union similar to marriage that was not between one man and one woman.  The Court found significant that the relationship must be between persons of the same-sex, and that they must be in a committed relationship and that they must not be legally married to anyone else and that they must share a residence and be jointly responsible for the necessities of life.  These qualification requirements, which are very similar to those of Mecklenburg County and other municipalities in NC,  were found by the Michigan Court to be some of the core qualities of a marriage, and that providing benefits to same-sex couples on that basis was a recognition of a relationship not permitted by the Michigan constitution.

In the recent paper by three Campbell Law School law professors referenced on this blog, they opine that “even if the proposed Amendment passes, same-sex partners still may be able to receive health insurance benefits from public employers”.

They say: “It depends on how “domestic partner” is defined. The Michigan Supreme Court answered yes in National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008), the leading case on the issue, but the insurance benefits in that case were premised upon the recognition of a narrowly defined status (“domestic partner”) that was substantially similar to marriage. If “domestic partner” is defined in a way that does not create a status similar to marriage, North Carolina’s proposed marriage amendment would not prevent public employers from offering such coverage”.

In other words, according to these three Campbell Law School professors, if municipal governments make these benefits available only when same-sex and opposite sex couples make their arrangements sound less committed and less like marriage, then everything will work out just fine.  This argument, if put into practice, could be the makings of the NC version of “Don’t ask-don’t tell”, or worse yet, “When asked – lie about it”.

Russell Robinson, a well-known lawyer in NC, had this to say at a forum this week.  He presented the issue in terms of an animus toward gays and lesbians.  He said that the main sponsor of the amendment explains that a city could still allow an employee to pick one household member to be a joint health care beneficiary, but only if they do not have “the status of a domestic relationship other than marriage”.  Russell Robinson says that “if this means anything, it must mean that the presence or absence of any private sexual activity is the test of whether they can have benefits”.  He goes on to say that “if they are just good friends or only roommates, they can; if they are active lovers, they cannot”.  He believes that apart from the harm this will cause to those who lose these benefits, this fact alone could lead to a federal constitutional challenge invalidating the amendment, because according to our Supreme Court, a  person’s private sex life is “out-of-bounds for government action”.

The problem with the analysis by the three Campbell Law School professors, who are opposed by Family Law professors throughout the state, is their failure to analyze the issue in the context of how benefits currently are offered by municipalities.  If they had done that, they might be forced to conclude that based on the way that Mecklenburg County and other municipalities provide such benefits, it is highly likely that the current programs will be held to be unconstitutional if Amendment One passes.

Their contention that these benefits may still be possible also appears to ignore reality.  And here is why.

The three Campbell Law School professors impliedly acknowledge that true domestic partners –those unmarried couples in marriage like relationships –cannot continue to receive public employer benefits if Amendment One passes, unless they change the description of their relationship.

The professors agree that “given the qualities that domestic partnerships, as defined by the insurance policies, held in common with marriages, the court in National Pride at Work concluded that ‘domestic partnerships are unions similar to marriage,’ and thus the recognition of such partnership agreements in the insurance polices violated the marriage amendment.”

The professors go on to explain.

“The Kentucky Attorney General reached the same conclusion as the Michigan Supreme Court in National Pride at Work case when asked whether a state university’s offering health insurance coverage for “domestic partners” of its employees violated the Kentucky marriage amendment.  The insurance policies at issue in Kentucky defined eligibility for coverage as a“domestic partner” to include criteria such as not being currently married to or legally separated from another person, being at least 18 years of age and mentally competent, and not being related by blood to a degree that would prohibit legal marriage. The attorney general’s opinion observes that “[a]ll of these criteria . . . expressly define ‘domestic partner’ in terms closely resembling the legal conditions for the status of marriage.”One of the policies also required “living together as a couple.” The opinion adds that “if ‘living together as a couple’(emphasis added) is recognized as part of a legal status for unmarried individuals, in conjunction with the other elements resembling marriage [identified above], it further indicates an intent on the part of the university to recognize an imitation or substitute for marriage”.

Then they say: “The reasoning used by the Michigan Supreme Court and Kentucky attorney general would not bar North Carolina public employers from covering domestic partners in a way that does not define their relationship in terms of a status similar to marriage. The Kentucky attorney general’s opinion explains that[i]f “domestic partner” were defined in a more general manner, not so delimited as to resemble a tailored alternative to the legal status of marriage, there would be nothing in [Kentucky’s marriage amendment] to prevent Kentucky’s public universities from offering this coverage. Alternatively, the universities could elect to offer health insurance benefits to all of an employee’s dependents, or to use any other approach that would not involve the unconstitutional recognition of a legal status resembling that of marriage”.

In other words, municipalities can re-write their policies so that employees can cover their mothers, fathers, brothers, sisters, neighbors, former college roommates, mailmen, and close or distant friends or cousins, but they will have to stop providing these benefits to two unmarried individuals who receive them because they are in a committed relationship with a number of factors that approximate marriage.

I suppose the rules could be re-written to be more narrow.  Municipalities could allow coverage just for roommates, and as long as the roommates didn’t say they were lovers in a committed relationship, things would be fine.  So how many roommates?  And why would a municipality make roommate coverage available?

Apart from the fact that Amendment is likely to kill off these benefits as currently provided, affecting real couples and their children (something the Campbell professors conveniently avoid discussing), does anyone think that municipalities are going to extend health benefits to a group of roommates whose only relationship is sharing the rent? Maybe they are just drinking buddies, or maybe they are going to room together just for the benefits.  The possibilities for abuse would be endless and would ignore entirely the reason that municipalities extend domestic partner benefits in the first place.

But I digress.

What was I talking about? Oh, yea, the issue of whether these votes by municipalities are just politics, or whether there is more at stake.

For the Mecklenburg County Board, I submit that more was at stake, because the County has a policy that very likely will become unconstitutional if Amendment One passes, which means that same-sex partners and children of County employees could lose benefits.

And yet, the vote by the Mecklenburg County Board was along the lines of Traditionalists and Modernists, but with a twist.  The Traditionalists may believe they were seeking to preserve the status quo for marriage with their votes, but on the other hand, they also were seeking to change the status quo for their employees who receive domestic partner benefits.  Perhaps the glare of the marriage headlights blinded them to the reality of their votes.

This same glare has blinded Representative Ruth Samuelson, who said at a forum the other night, that she believes in her heart that this amendment is the right thing to do and she does not see any harms coming from it.  Does she not see them, or does she simply refuse to read the case law and listen to the explanation?  Perhaps if she did, it would leave too painful a choice between one strong held belief and the reality of the measure at hand.

In a letter to the editor today, one citizen says that future generations will thank us for protecting marriage, saying studies have shown that the best arrangement for raising children is the commitment of their married father and mother.  I am told that experts disagree on that point, but even so, does she mean that a child raised by a foster parent, or by a single parent or by a loving committed same-sex couple, will not be thankful for the love, care and feeding they received when we ask them in twenty years?

The Buzz, a way to sound off in The Charlotte Observer, had this entry today: “Let he who is without sin cast the first vote for Amendment One”.

Amendment One has created a complicated, emotional, and unnecessarily divisive debate over an issue that will not be put to rest on May 8th.  There will be cultural hanging chads to be inspected, and the Supreme Court of the United States will rule on the issue one day.

So do you civic duty.  Go vote.  But when you do, remember that for the Traditionalists and the Modernists, on some issues, there is a right side of history and a wrong side of history.  Let’s get on the right side of history with our votes on May 8th.

This entry was posted in Fact or Fiction, Twists and turns, What People Are Saying. Bookmark the permalink.

1 Response to Votes on Amendment One by County, City and Town Boards – Is it just politics, or is there more at stake?

  1. Bob Bollinger says:

    Speaking of domestic partner benefits for Mecklenburg County employees, Bill James was already trying to do away with those benefits the morning after the election.

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