One Trial Lawyer’s Final Argument to the Amendment One Jury

Members of the jury, I want to thank you for your patience and attention for the past two months in this very important case.

Our system of justice cannot work without citizens participating in the process. You have done that well and very soon, you will have a chance to take the last act in performing your civic duty.

In just a few hours, you will be given a verdict sheet, which you will take with you into the jury room.  On that sheet will be one question.

You know the question by heart now, but let me read from the verdict sheet, which asks you to say whether you are for or against the following:

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.

In the time that I have with you now, I ask you to engage with me on several topics relating to this amendment.

First, I would like to review with you some of the legal issues raised by this question you will decide.  I do not have time to get to all of the legal issues, however, and for that reason, I ask that you rely upon your memory of the evidence that has been presented on the legal issues.

I also would appreciate the opportunity to discuss with you what the other side contends are the primary reasons you should vote for this amendment to our Constitution.  In doing so, I would like for you to think with me about whether a vote for this amendment actually will accomplish their stated purposes.

Finally, it is important that we listen to the words of real people.  And then I will end with a true story.

So first, let me start with the legal issues.  These are perhaps the driest of the topics we will discuss, but they are important topics nonetheless.

Let’s start with the wording of the amendment.  As you examine the wording in detail, you will come to the conclusion that the amendment is about more than just marriage.

You may remember the evidence that was presented in this case about the legislative history of this amendment.  The original House bill said this is how the amendment should read: “Marriage is the union of one man and one woman.  No other relationship shall be recognized as a valid marriage by the State.” That language is remarkably different from the language in the amendment that is being put before you today.

The principal difference in the wording of the original House bill and the final version of Amendment One are three simple but complicated words: “domestic legal union”.

The other side has admitted, and the Constitutional Amendments Publications Commission has said in its official statement on the amendment, that no NC case or statute has ever defined this term “domestic legal union”.

More importantly, the Commission, which is a neutral body made up of the NC Secretary of State, the NC Attorney General, and the General Assembly’s Legislative Services Office, has said that the Courts are going to have to sort out the meaning of the term.  It is not clear how long that will take.

Of course, the term “marriage” has been defined in NC for many years and we know what it means — the union of one man and one woman.  It has always been this way in NC and the chance of a NC Court changing that are rather remote.

In other words, we North Carolinians know what we are talking about when we talk about marriage, but when we talk about something called a domestic legal union, we are not sure what it means and we are at the mercy of the lawyers to fight about it and the courts to sort it all out.

There is good news, however, as you think about the meaning of this term “domestic legal union”.  Legal experts on both sides agree that in addition to preventing our legislature and our NC Courts from permitting same-sex marriages, the term “domestic legal union” will prevent the legislature from passing any law allowing civil unions for same-sex couples.

So what does this mean?  You heard the evidence presented about civil unions.  At least  nine states have adopted laws that allow civil unions of one type or another: California, Delaware, Hawaii, Illinois, New Jersey, Nevada, Oregon, Rhode Island; Washington.

The civil union laws in these states afford important legal rights to committed same-sex couples, similar to the rights which NC married couples take for granted. For example:

  • Laws relating to title, intestate succession, or other incidents of the acquisition, ownership, or transfer, in life or at death, of real or personal property, including eligibility to hold real and personal property as tenants by the entirety
  • Laws regarding adoption, divorce, workers’ compensation, wrongful death, domestic violence
  • Tax laws, family leave benefits, and laws relating to medical care and visitation

Yet, the civil union domestic partner laws in these other states do not include recognition of same-sex marriage.  Instead, these laws are premised on the idea that if the relationship is between only two unmarried same-sex individuals in a committed relationship similar to marriage, then as tax paying citizens of the state, they deserve to receive some of the same state based benefits as married couples.

After all, married couples don’t have to be saints to get all the state based benefits of marriage.  They can be quite the contrary.  They can be drug addicts, adulterers, spouse beaters, convicted felons, verbal abusers, bigots, atheists, agnostics, and the list goes on.  Law-abiding, committed, same-sex couples, some of whom are deeply religious, are out of luck in NC when it comes to marriage, and if this amendment passes, they will be out of luck when it comes to civil union domestic partnership opportunities.

Now, just to be clear, NC does not currently recognize civil unions, so you may ask me why I am spending so much time on this point.  It is because we have heard evidence, based on professional polling data, that many North Carolinians do not understand that a vote for Amendment One is also a vote against civil unions.  This is important because the same polling information has shown that a large percentage of potential North Carolina voters who believe marriage should remain the union of one man and one woman, also believe it would be appropriate to allow same-sex committed couples — two people only — some of the rights associated with civil unions.

Thus, the way Amendment One is worded, if you vote to approve Amendment One, you are voting on more than just marriage.  Simply put, you are voting against civil unions. So a vote for marriage is also a vote against something else.  You will not find this explanation on any of the Vote for Marriage signs or commercials.

Now some of you may say that this is just fine with you, because you do not want same-sex couples to have any rights in this State, and you are happy that the language is very broad.  You do not want the legislature to extend any rights to same-sex couples, because they are homosexual.

Others of you may say that you are against same-sex marriage but you are not against civil unions for same-sex committed couples.  This presents a real quandary.  You will have to decide whether to vote for religious or traditional marriage, knowing that your vote will be a vote against economic and legal equality in the form of civil unions.

Let me share with you a similar situation that occurred in Arizona in 2006.  Arizona is a conservative leaning state, like NC, and in 2006, voters were faced with a constitutional amendment similar to Amendment One.  Like Amendment One, it was broad in scope, broader than just marriage.  It would have prohibited the state, as well as cities, counties, universities and school districts from recognizing civil unions or domestic partnerships. That meant it would even have applied to men and women living together but not married.

In 2006, the voters of Arizona rejected the broad constitutional amendment with which they were presented.  This forced the legislature to re-write the amendment to focus only on marriage.  When it did that, the new, more narrow version of the amendment, passed in 2008.

If you believe that the legislature has gone too far, that is, if you are against same-sex marriage but you believe that the state, and municipalities and universities should have the right to extend benefits to same-sex couples, then the Arizona experience is a perfect guide for you.  You can vote against the amendment, send it back, and make the politicians get it right.

Speaking of municipalities and universities, let me address briefly how Amendment One will impact same-sex health insurance programs and policies for their employees.

Because marriage between one man and one woman is the only domestic legal union that can be recognized, if you vote to pass Amendment One, domestic partners of employees who work for municipalities and universities are likely to lose their benefits. This is something that most legal scholars agree will happen.  It happened in Michigan with an amendment that was not as broad as Amendment One, and it happened because the municipalities were offering these benefits to unmarried same-sex couples because they were in a relationship similar to marriage.  That would be illegal if Amendment One passes.

Those who are for Amendment One have argued that municipalities and universities can simply re-write their programs, to provide that employees can cover their roommates, and that as long as the reason they are being covered is not because they are in a same-sex committed relationship similar to marriage, everything should be fine.  This argument is creative to say the least, but in practical terms, it ignores the reality of why municipalities and universities provide these benefits and it highlights that the sponsors of Amendment One have a personal bias against homosexuals, that is, roommates are fine to be covered, but not those of the same-sex who are in a loving relationship similar to marriage.

If you take the other side’s argument at face value, it becomes clear that the existing public employer programs for same-sex domestic partners will vanish — will become unconstitutional — if Amendment One passes.  And this consequence of Amendment One is not obvious to those who believe that the amendment is simply about marriage.

There are other legal issues and you have heard much evidence about them. You have heard about domestic violence, child custody, wills, trusts and end-of-life powers of attorney.   There is debate among legal scholars as to whether Amendment One will cause problems in these areas.  There is no debate, however, that if the amendment had stayed focused on marriage, rather than domestic legal unions, none of these legal issues would exist.  In other words, if the politicians had kept the focus on marriage, than none of these other areas of the law would be impacted.

So will there be an effect on domestic violence, child custody and estate planning or health-care powers of attorney?  We won’t know for sure until the courts decide. I can tell you this.  I will be fighting to prove that Amendment One does not impact these rights, and I believe I have a good argument that Amendment One will not take away domestic violence protections.  But with 250 District court judges in the state, we don’t know how all of them are going to rule on this question.

And with the other areas of the law, we don’t know what the impact will be if some of the documents in question are challenged on public policy grounds, it being the public policy of Amendment One to recognize only the domestic legal union of a marriage by one man and one woman.  Wills and trusts and powers of attorney are generally honored as long as they do not offend public policy.  Some legal scholars believe that such legal documents involving illegal domestic partnerships may be subject to challenge.  The risk is heightened where the documents make reference to a domestic partner arrangement not authorized by law.

And the second sentence of the Amendment, which will not be on the ballot but which will be part of the law, focuses only on the right to make private agreements.  A will, trust or power-of-attorney is a unilateral declaration that can be revised, not a private agreement.   The same could be true for private employer health plans, which unlike a binding contract between two individuals, can usually be revised at the will of the employer.  All of which means that there will be some uncertainty in the law, a fact legal experts do not dispute.

As for child custody issues, under current law, child custody disputes focus on the best interests of the child and the unmarried cohabitation of a parent is not a sufficient basis to deny custody.  If, however, the Amendment passes, some legal scholars believe that Judges might find that Amendment One is an expression of public policy against all non-marital relationships. In one NC Supreme Court case, for example, custody was awarded to a non-biological partner where the parties had agreed to create a family.  Some scholars believe that such a decision will be subject to challenge as an illegal domestic partnership, even if the Court believes that the child’s best interest is served by access to both same-sex adults who raised the child.

But enough about the potential legal issues and the poor wording of Amendment One.

Let’s talk for a moment about the alleged threats to marriage which are driving the push to pass Amendment One.

We have heard arguments presented that marriage is under attack across this country and that it is necessary to protect the definition of marriage by voting yes.

N.C. House Republican leader Paul Stam, who advocated for the amendment to be placed on the ballot, contended in a press conference that the amendment is necessary to prevent heterosexuals from losing interest in marriage.

Taking Representative Stam’s proposition to its illogical conclusion, if Amendment One does not pass, I should want to leave my wife of 28 years and worse yet, start playing for the other team.

So has there been any evidence presented of a connection between marriage amendments and maintaining marriages?  No.  To the contrary, you heard evidence, based on a study by UNC law professor Holning Lau,  that of the 5 states he studied with the lowest divorce rates, none have an amendment banning same-sex marriage.  Ironically, the five states he studied with the highest divorce rates had amendments excluding recognition for same-sex couples, so the amendment must not be working to prevent divorce.

In short, the appeal to save traditional marriage is an emotional one.  You know and I know that there will be no practical effect for the protection of marriage if the marriage amendment passes.  It will not prevent divorce.  It will not prevent infidelity.

And, on the other end, if the amendment does not pass, there is no evidence that men and women are going to be less attracted to one another, or that suddenly or over time, they will have less interest in marriage.

We also hear as a reason to vote for the amendment that children can only be raised properly by one man and one woman who are the biological parents of the children.

Even if sociologists and pediatricians agreed with this argument, and you have heard evidence that most of them do not, there has been no explanation and no evidence presented as to how the Amendment will cause children to be raised only by their two biological parents.   There are single parents, adoptive parents, foster parents and unfortunately, children without any parents, and the Amendment does not address these situations. And as for the notion that these parents, or same-sex couples who are raising children, are not as competent to raise children as biological parents, the idea is insulting to those families and to the children in those families.

We have also heard that you should take a stand for God’s definition of marriage.

We have heard from ministers and religious leaders on both sides of this debate.  Some ministers and religious leaders are encouraging you to vote your religious beliefs about marriage.  Other ministers, of the same faith denominations, are asking you to think about how your vote will impact your neighbors.

From a legal perspective, I ask this question. Do you want an important constitutional issue to be decided by the majority religious view?

What if your religious view is in the majority today, but one day, your religious view is in the minority?

Would you ever want the religion of others to become part of your state Constitution, or do you want the Constitution to protect your right to religious freedom?

When this country was being settled, there was persecution of religious denominations, and our federal constitution established the important protection of separation of church and state, so the state cannot dictate religion on its citizens.  This was done to protect all religious beliefs, not just those of the majority, so I ask you to be cautious with your vote.

If your desire is to convert others to your religious beliefs by constitutional directive, it sets a bad precedent for you if the shoe is ever on the other foot.

Constitutions are supposed to protect the minority, not be a tool of the majority to oppress them.

But what about sin?  We hear that homosexuality is a sin and that it deserves to be punished.  To that I say, let he who is without sin cast the first vote for Amendment One.  And while you are at it, be sure to put down as write in candidates, the divorce amendment and the infidelity amendment.

As I wrap up my argument, I would like for you to think about some of the statements by people who have testified in this trial:

From a graduate student, who speaks to us about diversity: “For it is only through embracing difference that we can truly learn about ourselves”.

From a lawyer who speaks to us about NC history: “The US Constitution was adopted by a majority of the states in 1787, but was not ratified by our state until November 1789—because we would not ratify it until the Bill of Rights was made part of the Constitution”.

From faith leaders in more than 55 towns and cities in NC:  “As clergy and leaders in our faith traditions, we are mandated by God to demonstrate and protect love in all its forms and to stand for justice for all of creation. In faithful response to this calling, we commit ourselves, along with thousands of other Christians, Jews, Muslims and other people of faith around North Carolina, to voice our opposition to Amendment One, to witness to the harms it would cause ALL of God’s children in North Carolina and to use the gifts God has given us to defeat this amendment”.

From a gay student writing to friends and family: “As a gay individual, this amendment severely limits my rights to experience what everyone dreams of. It rejects my right to marry whom I love. In a more practical sense, it rejects my right to tax exemptions and visitation. However, I do not want this to be about me. I want to look at the bigger picture of this amendment”.

From a minister who speaks to us about God’s love: “The message of Jesus was love of neighbor, acceptance of all, and radical  hospitality to those who are oppressed and marginalized. As a minister called to  share this message, I oppose NC Amendment One on the basis that it discriminates  against the oppressed.  This is antithetical to the message of Jesus.  Amendment One is not about marriage; it’s about taking away even more rights  from those who are already disenfranchised”.

From an undergraduate opinion writer who speaks to us about humanity:  “This isn’t a debate based on politics. It’s a debate in humanity. Think about the rights you would want afforded to you and the chances you wish to have with the ones you love. Think about the harm that this amendment will cause and take action. We’ve been down this road of arbitrary hatred before. It’s time to choose a new path”.

From a minister who speaks to us about God’s truth: “Jesus said ‘You shall know the truth and the truth shall set you free’. The primary truth he taught was the encompassing love of God and what it means for our relationship with others. He embodied this truth in his welcome of and friendship with outcasts and those classified as “sinners”, with tax collectors and prostitutes, Samaritans, Canaanites, Gentiles, even Romans”.

From the NAACP, on the discrimination of Amendment One: “For 102 years the NAACP’s mission has always been to “ensure the political, educational, social, and economic equality of rights of all persons.” We have always opposed any custom, tradition, practice, law or constitutional amendment that denies any rights, privileges, or opportunities to any person which can legally be extended to others. We should never codify discrimination, division and hate into our Constitution. All people have a right to equal protection under the law”.

From a minister who speaks to us about self-righteousness:  “Some people seem to think their brothers and sisters are limited only to those persons who think (believe, vote) like them. They draw circles that exclude those who are different or whose life situations/practices conflict with their own. They draw limits on their expressions of love which God (who is Love) refuses to draw. They even go so far as to write and support unloving legislation that beats today’s Samaritans and leaves them bleeding. It is possible to encapsulate a lack of compassion in a cloak of religious rhetoric and travel along the road toward the Holy City of self-righteousness”.

From a lawyer who speaks to us about separation of church and state:  “This country was settled by strong people, many of whom were seeking to avoid religious persecution and live in the land of the free and home of the brave. Our US Constitution was dead on with an amendment that protected the religious rights of all people to be free from government interference. Let’s try to keep these traditions alive when we vote on Amendment One”.

From a law professor on the same topic:  “In short the Constitutional Republic crafted by the Founders and carefully codified in the U.S. Constitution and, later, in the N.C. Constitution was designed to ensure that a majority could not take away the rights of a minority.  A member of the minority is every bit as free and every bit as entitled to Freedom as a member of the majority.  Amending the N.C. Constitution, based simply on a majority vote, to take away the rights of a minority group and to explicitly codify one set of religious values into the foundational legal document of our state, is utterly inconsistent with the bedrock principles of Liberty, Justice and Equality that have made this country a beacon of hope and freedom for more than 235 years”.

From a law professor on the amendment: “The principal problem with this language is that the phrase “domestic legal union” does not appear anywhere else—not once—in the North Carolina general statutes.  So we don’t really know what kinds of “domestic unions” will be affected by Amendment One.  But Amendment One’s vagueness makes its potential applications far greater than its propagandized limitations.  The reality is that more heterosexuals will be affected by this Amendment than homosexuals”.

From a gay mother raising three children with her partner of 13 years:” What the Amendment does do is send a message to all LGBT citizens in North Carolina that we are less-than, that we are not wanted as citizens of this State. A vote for Amendment One is not a vote for marriage; It is a vote against love”.

As I hope you will agree, these are compelling statements.

There are other considerations as well.

You have heard evidence that companies are leading the way in providing benefits to gay employees.  Some business leaders believe Amendment One will be bad for business. No one can prove this belief, but it is hard to imagine that an amendment targeted at a minority can be good for business.  In these lean times, is there any reason to take chances, particularly when there already is a law against same-sex marriage in NC?

Now, you may be sitting there listening and saying to yourself that you agree with the idea of equality for everyone but you do not favor same-sex marriage.  You are asking yourself: Can I be against same-sex marriage and still be against Amendment One? The answer is:

Yes — A vote “against” will not change current law on same-sex marriage.

Yes — A vote “against” will avoid writing into our Constitution discrimination against the minority.

Yes — A vote “against” will keep the door open for the legislature to approve civil unions for same-sex couples, which is supported by polling data.

Yes — A vote “against” will avoid economic and other harms (actual and potential) to individuals and their families (same-sex and otherwise).

And here are the truth and consequences of Amendment One:

Truth

  • No one will be hurt or lose any rights if the amendment fails to pass.  Gay marriage will still be against the law.

Consequences

  • If the amendment passes, people will be hurt economically and emotionally, and in certain areas of the law in NC, there will be uncertainty and unnecessary court battles.

There was a letter to the editor today which said: “You’re supporting a lost cause opposing Amendment One”.  Is the writer correct?  Am I supporting a lost cause?

The amendment could very well pass, but history teaches us that legal prejudice can only last so long.

In June 1958, it was legal prejudice of a similar kind that landed Mildred Loving, a black woman, and Richard Loving, a white man, in jail in Virginia.  Their crime was nothing more than the act of two people deciding to get married.  The legal prejudice at the time prohibited interracial marriage.

The trial judge who sentenced them had this to say: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix”.

The Supreme Court, in a bold decision for the time in Loving v. Virginia, called marriage a basic civil right and held that “under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State”.

Some will argue that the Loving decision has no applicability to the current debate, saying that gays do not have a 14th Amendment equal protection basis in the law for same-sex marriage.  But even if they are right, they miss the point of Loving.

The legal prejudice of the Virginia law, of the prosecutor, of the trial judge and of the intermediate appellate court, did not win out.  It took nine years from the time of the arrest until the Supreme Court ruled, but in the long run, legal prejudice was defeated.

Religion drove that law and the trial judge’s perceptions about the validity of that law.

40 years later, Mildred Loving had this to say:

“When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married”.

“Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights”.

“I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about”.

If the pundits are right, and I hope they are not, legal prejudice may come to the NC constitution after all the votes are cast, but if it does, it can only last so long.  It can only last so long.

Members of the jury, the case is now in your hands.  I have done my best to inform you about the law and the truth of Amendment One.

History will judge what NC does with this amendment.  Please vote to put NC on the right side of history.

This entry was posted in Constitutionally speaking, Fact or Fiction, The Bible tells me so, Twists and turns, What People Are Saying. Bookmark the permalink.

13 Responses to One Trial Lawyer’s Final Argument to the Amendment One Jury

  1. wes207 says:

    Landis, what a spectacular closing argument! Surely there are many who are willing to soften their hearts and open their minds enough to vote against this amendment. Whether it is voted down or passed, you have done a great service here with this blog, and your readers are very grateful.

  2. Windsong 105 says:

    Landis, thank you for all the time, research, and energy you have used to present the facts over this debate. You have fought the good fight, and in the end justice will prevail. It may not come on Tuesday, but this debate will not be over if this Amendment passes. I have already voted, and I will watch the results closely tomorrow night. I have followed this blog from the start, and I have used it extensively to try to educate people to the facts. Thank you! Angela Carnes

  3. I am very glad that I am not a lawyer. I could never compete with a closing argument like this one. I appreciate the vigor with which you argue against using the constitution of the state as a means to codify discrimination, especially since this proposed amendment is so vague the interpretation by judges and scholars will fall in line with their personal beliefs as people who would like to challenge their current status (child support/benefits, domestic violence charges, etc.) will be pushing to have their cases heard in front of what could be seen as friendly judges in order to have precedent set. Further miring our court systems in appeals and long awaited decisions on the finality and constitutionality of such actions.

  4. Fredda Kimball says:

    Landis–Simply said, thank you for all you have done in the past weeks.

  5. Brian Clarke says:

    Well done Landis, well done. Thank you for all of the time, effort and passion you have invested in this effort. I agree wholeheartedly that even if Amendment One passes on May 8 — heaven forbid — it will be short lived.

  6. mark says:

    Thanks for all of your hard work and research that you have done over the months. I enjoyed all 50 posts and this final post is well done. No hung jury here, Landis!! Thanks again.

  7. Ted in Charlotte says:

    Landis — I think that no one who reads this could disagree. The problem is that no one who disagrees will read it.

  8. ik65426 says:

    “They can be drug addicts, adulterers, spouse beaters, convicted felons, verbal abusers, bigots, atheists, agnostics, and the list goes on.”
    I appreciate the time and effort that went in to making this post, but I am quite offended that you would include atheists and agnostics in the above list. I could make a lengthy argument, but I trust that as the author of a post such as this one, you will understand why it is not appropriate.

    • You make a good point, especially to the extent that this reference could be misconstrued to suggest that one’s religious preference or lack thereof is equated with being a felon or a bigot. It is not. What I should have said is that you don’t have to be religious to get married in NC and even convicted felons and bigots can get married. Thanks for pointing this out.

  9. Bob Bollinger says:

    Landis, thanks for the blog, your eloquent closing argument, and for allowing me to contribute. Thanks for all you did to try to educate and inform. BB

  10. Charlyne DeVane says:

    You have obviously given great consideration to the potential discrimination against homosexual unions. I completely agree that this amendment has a much greater impact on heterosexual unions than homosexual ones. I would argue that your position discriminates against heterosexual relationships because you are proposing benefits for homosexuals that are not and would not be available to heterosexuals living together outside of marriage. Your position seems to favor homosexual partnerships and provide public policy incentive to engage in homosexual relations. It reminds me of the movie Chuck and Larry and causes me to question where the heterosexual people who love each other fit into the argument. In my opinion, we are the ones who are the greatest losers in this debate because we are the forgotten targets of discrimination.

  11. Mark says:

    Wow! I just read a comment from Charlyne and I am floored. Are you kidding? Two heterosexuals can get married and receive all benefits that you feel you are missing out on. You have an option. The gay community has no option after the May 8th decision. What an injustice. Voting against would not have hurt or damaged anyone! Charlyne, get married if you want the benefits associated with married couples.

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