Guest Post – Campbell Law School Professor Gregory Wallace challenges some of the legal arguments against Amendment One

This post is courtesy of Professor Gregory Wallace, who teaches constitutional law at Campbell Law School, with a concentration in free speech, church and state, and constitutional interpretation.  He received his J.D. degree from the University of Arkansas-Little Rock School of Law. He received the LL.M. and S.J.D. degrees from the University of Virginia School of Law. He also obtained an M.A. degree with honors from Dallas Theological Seminary. 

Professor Wallace asked if he could post on my site in order to offer an analysis of the legal issues of Amendment One that are different from some of the opinions held by other law professors in the State. On some issues, he agrees with other law professors, and on other issues, he disagrees.

This blog site has been about exploring the truth of Amendment One, which means listening to all sides in this debate.  It is in that spirit that I am posting his opinions.

Following this post by Professor Wallace, we will have a responsive post by UNC Law Professor Maxine Eichner.  I hope you enjoy the debate.

A big thanks goes to Landis for publishing this guest post. While he and I disagree about the meaning and potential effects of the proposed NC marriage amendment, we share a belief that NC voters are best served by having accurate legal information about the amendment. In that spirit, he has given me access to this forum, and I appreciate that. 

I am a law professor at Campbell University School of Law where I teach constitutional law. Recently, two colleagues, Professors Lynn Buzzard and William Woodruff, and I published a paper responding to claims made by Maxine Eichner, a professor at UNC School of Law, regarding the potential legal effects of the proposed amendment. Landis has provided a link to our paper for those who want to read our arguments in full. 

Most of you are familiar with Professor Eichner’s claims: the proposed NC marriage amendment will not just ban same-sex marriages, civil unions, and domestic partnerships, but also may affect all unmarried straight or gay couples by removing domestic violence protections for unmarried people, changing existing child custody and visitation laws, and barring other protections for unmarried persons relating to emergency medical decisions, hospital visitation, disposition of remains, trusts, wills, and end-of-life directives. These claims have been widely disseminated by both the media and amendment opponents, including family law professors at NC law schools and family law attorneys. 

While the apparent aim of the proposed NC amendment could have been stated with greater clarity, we do not think its terms justify these concerns. To begin with, we agree with those who say that the amendment goes further than just banning same-sex marriage. The amendment bars the state from recognizing or validating any other “domestic legal union” than heterosexual marriage. This includes both same-sex marriage and civil unions or domestic partnerships that constitute legal substitutes for marriage.

The question that has raised so much media attention and has been the subject of much of the recent public debate on the amendment, however, is whether the proposed amendment also applies to relationships that go beyond marriage or marriage-like unions, such as unmarried couples merely dating or living together. We respectfully disagree with Professor Eichner and others who think the amendment will bar legal benefits or protections for unmarried couples.

It is true, as amendment opponents claim, that the phrase “domestic legal union” has never appeared in NC statutes or judicial decisions. We do not believe, however, that is a reason to think that NC courts will assign unreasonably broad or bizarre interpretations to it.

The key term in the amendment is “union.” It limits the amendment’s application to only same-sex marriage and civil unions or domestic partnerships that closely approximate marriage. It does not apply to all relationships between unmarried couples, whether they are roommates, dating, or living together. Here are our reasons for interpreting the proposed amendment this way:

1.   The term “union” repeatedly has been used by NC courts to refer to the marital relationship. (See our paper for citations.).

2.   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.”

3.   The term “union” also has been used to refer to civil unions and domestic partnerships in states like California where state legislatures have created such marriage alternatives.

4.   The term “union” has not been used consistently in NC or other states to refer to unmarried couples who are merely dating or living together.

5.   The common sense meaning of the term “legal union” does not include people who are merely roommates, dating, or living together. For example, nobody refers to a couple who is dating as having a “legal union.”

6.   The Idaho marriage amendment contains language almost identical to NC’s proposed amendment. The express intent of the Idaho amendment was summarized in the legislature’s “Effect of Adoption”:

It is intended to prohibit recognition by the State of Idaho, or any of its political subdivisions, of civil unions, domestic partnerships, or any other relationship that attempts to approximate marriage, no matter how denominated. The language is further intended to prohibit the State of Idaho, or any of its political subdivisions, from granting any or all of the legal benefits of marriage to civil unions, domestic partnerships, or any other relationship that attempts to approximate marriage. 

7.   None of the marriage amendments in 30 other states contain language or have been interpreted to make unlawful all relationships between unmarried couples. Opponents of NC’s proposed amendment have produced no evidence showing that it was intended to go beyond the scope of the amendments in every other state.   

8.   Courts generally are reluctant to strike down laws as unconstitutional. Under North Carolina law, it is well settled that “a statute enacted by the General Assembly is presumed to be constitutional.” A statute will not be declared unconstitutional “unless this conclusion is so clear that no reasonable doubt can arise, or the statute cannot be upheld on any reasonable ground.” (See our paper for citations.).

The inescapable conclusion is that the term “domestic legal union,” as used in the proposed NC amendment, is shorthand for same-sex marriage and civil unions or domestic partnerships that constitute legal substitutes for marriage. It cannot reasonably be interpreted to bar recognition of other relationships between unmarried persons.

No amendment opponent has offered a specific and persuasive refutation of our legal argument about the meaning of the proposed amendment. Family law professors at every NC law school, including Professor Eichner, issued a statement last Friday containing several conclusions but only one argument: “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.” (www.protectncfamilies.org/news/nc-family-law-professors-speak-out-against-amendment-one)

It’s not enough to argue, “Some law professors think this; other law professors think that; so, that proves either this or that could happen.” That’s like saying (with apologies to Duke football fans), “Some coaches think Alabama will be number one next season, while other coaches think Duke will be number one.” Both are not equally likely to happen; in fact, while it is theoretically possible that Duke could win the national championship, it is very, very unlikely to happen. You must examine the arguments behind the assertions. If a coach claims that Duke could wind up number one because it’s always possible that somewhere, somehow an All-American quarterback and wide receiver might transfer to Duke before the season starts, then such an “argument”—and the conclusion it supports—must be dismissed as unfounded speculation.

If the amendment bars only the legal recognition or validation of same-sex marriages or other relationships like civil unions or domestic partnerships that closely resemble marriage, then it’s passage will not affect unmarried couples and their protections under NC domestic violence laws or their rights to child visitation and custody, healthcare powers-of-attorney, devise property in wills, dispose of a deceased partner’s remains, etc.

This is most clearly seen with domestic violence laws. Here’s another point where we agree with Landis: the proposed amendment does not invalidate protections for unmarried couples and their children under NC’s domestic violence laws. To be sure, Landis argues that some NC district court judges may rule the other way, but we think that’s unlikely to happen.

Here’s why. Amendment opponents claim that what happened in Ohio could happen here. While worded differently, the Ohio marriage amendment—like the NC amendment—bars the state from creating or recognizing same-sex marriage or any other marriage-like statuses, such as civil unions or domestic partnerships, that approximate marriage. The confusion in Ohio was created by language in the state’s domestic violence laws protecting an unmarried person “living as a spouse” with the offender. Some lower courts held that giving protection to a person “living as a spouse” was unconstitutional under the amendment because it conferred upon that person an effect of marriage. The Ohio Supreme Court properly rejected that interpretation of Ohio’s marriage amendment and overruled those courts.

Unlike Ohio’s law, NC domestic violence statutes do not use the category of persons “living as a spouse,” and therefore are not susceptible to the same arguments that persuaded some Ohio lower court judges. Furthermore, the NC judiciary has the benefit of the Ohio experience and likely will not repeat it.

NC’s domestic violence laws protect broader categories of potential victims than are protected under Ohio’s laws. Several of those categories do not require the victims to have, or recognize them as having, a marital or marital-like “union” with the offender. NC’s protected categories include persons of the opposite sex who live together, people who have a child in common, current household members, and people of the opposite sex who are in a dating relationship. NC courts have applied the “household members” category to unmarried same-sex couples and the other categories to unmarried opposite-sex couples. Thus, the proposed NC amendment will not threaten domestic violence protections for unmarried partners because protecting persons who are dating or living together, or who have had a child together, does not confer on them the legal status of a “domestic union” and grant them the benefits, rights, and obligations of marriage (e.g., spousal support, inheritance rights, or the marital privilege). Put differently, simply acknowledging the fact that two persons are dating or living together does not recognize or validate a legal status that closely resembles marriage.

Under the same rationale, if the amendment passes, nothing will change in NC child custody or visitation laws because those laws depend on the relationship between the parent (or “de facto” parent) and the child, not on the custodians being married or having a marriage-like union. Similarly, other rights, benefits, and protections for unmarried partners will remain because they do not depend on the partners having a legal status resembling marriage. And, as we explain in our paper, NC public employers could continue providing health insurance coverage for domestic partners so long as the beneficiaries are not defined by criteria tailored to resemble an alternative to the legal status of marriage.

Amendment opponents claim that there will be extensive litigation in NC courts if the amendment passes. Except for Ohio, that has not been the experience in the 30 states that have marriage amendments. For example, marriage amendments in two states—Idaho, which has language virtually identical to the proposed NC amendment, and South Carolina, which Professor Eichner says contains language just as broad as the NC amendment—were enacted six years ago and there has been no court decision in either state interpreting the meaning of those amendments. In fact, in the majority of the 30 states which have marriage amendments, there are no reported appellate cases. Amendment opponents need to explain why they think NC’s experience will be different.

That’s not to say, of course, that there won’t be a district court judge here or there in NC who will give the proposed amendment a broad or bizarre interpretation—that’s always a possibility. But if we voted against constitutional amendments simply because some court might interpret them wrongly, we wouldn’t have any amendments to our federal or state constitutions, including our precious Bill of Rights and post-Civil War Amendments.

Some amendment opponents argue that greater clarity could have been achieved by proposing a narrower amendment that would bar only same-sex marriage, as is done under NC statutory law. Of course, the legislature then would be free to create domestic civil unions and or domestic partnerships with the same rights and benefits as heterosexual marriage and, as a result, expose the NC marriage amendment to the same constitutional infirmity that the Ninth Circuit identified in striking down California’s Proposition 8 marriage amendment. According to the Ninth Circuit, it is unconstitutional for a state to prohibit only same-sex marriage, but recognize same-sex civil unions that are functionally equivalent or nearly equivalent to marriage. The current proposed NC marriage amendment avoids this conflict with the federal Constitution.       

We don’t ask you to believe us just because we are law professors; we invite you to examine our arguments. Read our paper as well as the UNC law professors’ paper, along with the family law professors’ statement, and then decide who has the better-reasoned arguments—arguments that courts likely will adopt. 

Thank you for considering my comments and, again, a big thanks to Landis for posting them.

Posted in Fact or Fiction | Leave a comment

Frequently Asked Questions about Amendment One – Part II

Q.  Has the term “domestic legal union”, which appears in Amendment One, ever been defined by the NC courts?

A.  No. Legal scholars agree on this point.

Q.  Will the term “domestic legal union” require interpretation by the courts?

A.  Yes.  The NC Constitutional Amendments Publication Commission makes clear in its official statement for voters that the Courts will have to interpret the meaning of this term.

Q.  Is the NC Constitutional Amendments Publication Commission a neutral body?

A.  Yes, it is made up of the NC Attorney General, the NC Secretary of State and the General Assembly’s Legislative Services Officer, and it is charged with providing an official explanation of any constitutional amendment for voters.

Q.  According to the NC Constitutional Amendments Publication Commission, is there a debate among legal experts about the impact that the term “domestic legal union” could have on unmarried couples of the same or opposite sex?

A.  Yes, according to the Commission, the potential impacts debated by legal scholars include employment-related benefits for domestic partners, domestic violence laws, child custody and visitation rights and end-of-life arrangements.

Q.  Does the second sentence of the Amendment, which provides private parties the right to enter into contracts, guarantee that all private contracts will be enforced?

A.  The NC Constitutional Amendments Publication Commission says that unmarried persons, businesses and other private parties “may be able to enter into agreements establishing personal rights, responsibilities or benefits as to each other” and “the courts will decide the extent to which such contracts can be enforced”.

Q.  Do legal experts agree that the Amendment, as currently worded, will prevent the legislature from approving civil unions?

A.  Yes.  In a paper published last week by three professors at Campbell Law School who disagree with professors at other law schools on some of the potential harms, they agree that “the proposed Amendment will bar not only same-sex marriages, but also recognition or validation of civil unions or domestic partnerships”.

Q.   Does Amendment One have the potential to threaten harms to a broad range of NC families?

A.   Three law professors at Campbell Law School, in their April 18, 2012 paper, argue that any such harms are unlikely.  In an April 20, 2012 response to that paper, 11 family law professors at the 7 NC law schools, including Campbell, say otherwise.  They say that a wide range of protections are threatened by Amendment One, including domestic violence protections and child custody law.  They say that they are aware of the Campbell paper and disagree with it and that “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”.

Q.   Could the potential for harms have been avoided by the drafters of Amendment One?

A.   Yes, if the drafters had kept the focus on “marriage”, rather than “domestic legal unions”, these issues would not exist.  The original House bill did provide that the marriage of one man and one woman shall be the only recognized “marriage” in the state, but the final language was changed to “domestic legal union”.

Q.   How could these harms definitely be avoided?

A.  If the amendment were voted down and the language of the amendment re-written to focus only on “marriage”, rather than “domestic legal unions”, then these harms would be avoided and the amendment truly would be the “marriage amendment”.

Q.   How have domestic violence victims been impacted in other states by amendments similar to Amendment One?

A.  In Ohio, it took three years before the Supreme Court ruled that the Ohio amendment did not restrict domestic violence protections.  Along the way, a number of Judges threw out convictions, declaring the statute unconstitutional and denying protection to the victims of domestic violence.

Q.  Is it certain that domestic violence benefits will be lost if Amendment One passes?

A.  No.  What is certain is that the possibility exists.  Some judges may decide that unmarried cohabitants of the same or opposite sex are not entitled to domestic violence protection because they are in an illegal domestic union.

Q.   How might child custody rights be impacted?

A.   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.

Q.  What about the custody of non-marital partners who have acted as parents?

A.  In one NC Supreme Court case, custody was awarded to a non-biological partner where the parties had agreed to create a family.  Some scholars believe that such an agreement will be subject to challenge as an illegal domestic partnership if Amendment One passes.

Q.  Will estate planning be affected for unmarried partners?

A.  There is debate on this issue.  On the one hand, wills and trusts are generally honored as long as they do not offend public policy.  Some legal scholars believe that courts could find transfers between partners in illegal domestic partnerships to be subject to challenge.  The risk is heightened where the documents make reference to a domestic partner arrangement not authorized by law.  The right of private parties to contract provision in the amendment does not apply to wills and trust, because they are not contracts but directives.

Q.   What about powers of attorney?

A.   There is a debate on this issue.  Generally, persons are allowed to appoint anyone they wish to serve as their agents in health related matters.  According to one legal scholar, however, the Nebraska Attorney General concluded that allowing domestic partners the right to dispose of a deceased person’s remains violated the amendment prohibiting the recognition of same-sex relationships.

Q.  Will domestic partner benefits given by municipalities be lost if Amendment One passes?

A.  Highly likely.  A Supreme Court decision in Michigan found that public employers could not provide health-insurance benefits to same-sex couples, because Michigan’s amendment did not recognize such relationships.  Many legal scholars believe the same thing will happen in NC if Amendment One passes.

Q.  So what are the definite effects of Amendment One?

A.  The legislature will not be able to pass a law allowing civil unions or domestic partnerships short of marriage, and there will be uncertainty in the law that needs to be resolved by the courts.

Q.  So what are the possible effects of Amendment One?

A.  Loss of municipal partner benefits for unmarried same-sex and opposite sex couples and their children, domestic violence protections, child custody and visitation rights, and rights flowing from trusts, wills, and health care and end-of-life arrangements.

Posted in Fact or Fiction | 2 Comments

Where is the morality in Amendment One?

Many people are planning to vote for Amendment One because they want to vote “for marriage”.

In fact, the campaign by the supporters of Amendment One have made it clear that this vote is about marriage.  This is evidenced in their sermons, their press conferences and  their well-crafted yard signs which say  vote “for marriage” on May 8th.

The “marriage” theme is broadened to include the morality play.

The morality play has at least three versions.  One version is the reverent version.  This is the version where the pastor tells the congregants that homosexuality is a choice and that the Bible is clear that homosexuality is a sin.  It is the reverent version because the pastor appeals to his flock to pray for the sinners.  The message: homosexuality is wrong and with God’s help, we can change them.  Let’s start with our vote on May 8th.

There is another version of the morality play that also is based in religion, but it is more strident, more judgmental.   In this version, the actors condemn the alleged sinners and they do so by quoting scripture.  Though these persons purport to be religious, their words are not.  The message: homosexuality is wrong and you are going to hell.  Let’s start them on our way with our vote on May 8th.

Then there is the version of the morality play that has nothing to do with religion.  It is just mean-spirited on its own account, without reference to scripture.  You might call this group the homophobic crowd.  They hate homosexuals because they are different.  They assault them with their words, and sometimes with their fists.  The message: homosexuals deserve what they get.  Make that clear with your vote on May 8th.

The crafters of Amendment One knew that the morality play and the focus on “marriage” would help get the amendment passed.  It has been a strategy used in other states.  It is not a bad strategy, because it works.

But here are my questions.  Where is the morality in this strategy and where is the morality in Amendment One?

Is it moral to lead the public to believe that a vote for the amendment is a vote “for marriage”, when it is really a vote to make the marriage of one man and one woman the only “domestic legal union” that will be recognized in the Constitution?

Is it moral to allow people to use their religious beliefs and their prejudices to cast a vote for a legal term — domestic legal union — which they don’t understand and which will lead to costly litigation and harms to families (heterosexual and homosexual)?

Is it moral to take the original House bill version of this amendment (which did focus on marriage only) and turn it into an amendment that focuses on domestic legal unions? And, is it moral, not to tell voters what you did or why you did it?

Everyone knows that lawyers like rules and the Bible certainly has lots of rules.

The 10 Commandments are the rules found in the Bible’s Old Testament at Exodus, Chapter 20.  They are often held up as some of the most important rules.

And yet, none of these commandments, none of these religious rules, say anything about homosexuality.

Commandment 7 says that “You shall not commit adultery”, but as you know, adultery is not on the ballot on May 8th and it is doubtful the politicians will put it on the ballot anytime soon.

More importantly, Commandment 9 says: “You shall not bear false witness against your neighbor”.  With that in mind, is it possible that this commandment is being violated by the morality play against homosexuals and the “vote for marriage” lie that has invaded the discussion about Amendment One?

Lying is a sin, right?

Deception against your neighbor is a sin, right?

About 1,400 years after the 10 Commandments, a lawyer confronted Jesus and asked him a question to test him about the commandments.

In the New Testament at Matthew 22, Jesus was confronted, as follows:
Teacher, which is the greatest commandment in the Law?” Jesus replied: ” ‘Love the Lord your God with all your heart and with all your soul and with all your mind.’ This is the first and greatest commandment. And the second is like it: ‘Love your neighbor as yourself.’ All the Law and the Prophets hang on these two commandments” (Matthew 22:36-40).

How is the morality play against homosexuals consistent with Jesus’ teaching to love your neighbor as yourself?

How is the lie that Amendment One is about only marriage consistent with the commandment not to bear false witness?

Is there any morality in claiming to voters that they are voting only on marriage when they really are voting on domestic legal unions and the harms that flow from that term?

Is there any morality in hiding things from voters, such as: the term domestic legal union is a term that neutral legal experts of the State’s Constitutional Publications Commission have said will bring uncertainty to the law in such areas as domestic violence protections, family law issues and private contracts between unmarried individuals?

It is one thing to put the current marriage statute (the one that prohibits gay marriage) in the Constitution to prevent the state Courts from striking down the law. It is quite another thing to pretend that this is what you are doing and then stick into the State constitution a provision that goes much further.

Where is the morality in not informing voters that a vote against this amendment will hurt no one but a vote in favor will hurt many people?  One needs look no further than the municipal partner benefits that will be lost if the amendment passes to realize that this is true before the law.

Lying and deception is a sin.  Failing to love your neighbor as yourself is a sin.

But apparently, according to the politicians and preachers who are pushing this amendment, some sins are acceptable and some are not.

The immoral means of the architects of Amendment One appear to be justified by the ends they hope to achieve.  Go figure.

Posted in The Bible tells me so, Twists and turns | 4 Comments

40 Posts in the Amendment One Wilderness – Many Suppporters are not listening – But there is hope

When I started this Truth project, several months and 40 posts ago, my goal was to contribute to public education on the subject of Amendment One.

I have tried to be true to that goal.  I have provided information about the Amendment, links to websites for and against the Amendment, links to legal papers on the topic and posts where I analyze a number of legal issues. 

I have tried to help people understand that this is not the “Marriage” amendment.  It is the “illegal domestic union” amendment.

I have tried to explain that a vote against this amendment will hurt no one and that a vote for the amendment can have legal consequences for a lot of someones.

While I am against Amendment One, I have tried to remain credible on the legal issues. In fact, I have not always agreed with the opponents of Amendment One on all the legal points. 

For example, where arguments by opponents have been made that domestic violence laws will be invalid if the amendment passes, I have disagreed, based on a detailed analysis of the NC statute and the Ohio experience.  Nonetheless, I ended up in the middle between the two sides, making clear that the uncertain wording of the amendment and the number of judges in this state who will interpret it could lead to some unprosecuted broken bones along the way until the appellate courts make the law clear.

I also do not agree with the opponents, for example, that the consequences are dire for visitation rights in hospitals if the amendment passes, because there are federal laws that give choices to patients about their visitors.  And yet, that doesn’t mean that this amendment will not create problems in certain circumstances given the language chosen for this amendment. 

I also do not agree with some who say that the amendment will not allow private contracts between unmarried couples, same-sex and opposite sex. In my opinion, the second sentence of the amendment (though it will be hidden from voters and not appear on the ballot), was designed to allow private parties in “illegal” domestic unions to make contracts among themselves.  

And yet, the extent to which private parties in an “illegal” domestic union can enforce certain contracts is an uncertainty, a point conceded by the Constitutional Publications Commission, whose job it is to explain the amendment to voters.  And furthermore, wills and trusts and powers of attorney are not private contracts, they are unilateral declarations, so they are not addressed by the second sentence of the amendment. 

I plan to continue my legal analysis and continue talking with people about Amendment One until the vote on May 8th.  However, I must say that it feels a little bit like I have been posting in the wilderness, in a place many supporters dare not visit.

When I pick up the newspaper, or read on-line reports, or watch the news, I am seeing too much preaching and not enough listening.

A minister is quoted as saying the Bible is clear on the point that marriage is between a man and a woman.  Vote “yes”.

A man writes a letter to the editor and says his faith requires him to support marriage between a man and a woman.  Vote “yes”.

A woman makes a point about Adam and Eve, saying God had no intention of having a marriage between Adam and Steve.  Vote “yes”.

And yet, and yet…does the minister, or the man, or the woman, do any of them care to know that this amendment does not seek to define marriage as between one man and one woman.  The original House bill would have done that, but the current amendment does not.  It seeks to define marriage between one man and one woman as the only domestic legal union to be recognized.  And correct me if I am wrong, but nowhere in the Bible or in our conservative upbringing did we ever hear that term, domestic legal union.

Do we ever say, in our small talk, when we meet a young couple, “where were you domestically legally unionized”?

Do we say, in the buffet line after the ceremony, “I truly thought this was a special domestic legal union”?

And do we ever say, “these young kids these days just want to live together, when they should really be in a domestic legal union.”

Of course not.  We talk about marriage. 

And that being the case, the biggest lie about Amendment One is the fact that it is argued and portrayed to be the “Marriage Amendment”.

If anything, Amendment One is the “domestic legal union” amendment, or better yet, the “prohibition against illegal domestic unions of all kind” amendment.

Unfortunately, much of the media feeds the lie, perhaps inadvertently, when it calls this the “Marriage Amendment”, and when it asks people how they feel about the “Marriage Amendment” and when it wants to engage in a forum about the “Marriage Amendment”.  And why is that?  It is because when people hear this they want to talk about one thing and one thing only — who should be able to get married.

What I am seeing is that many people who are “for” Amendment One don’t want to pay attention to the legal  issues.  They don’t want to listen.  They want to put their fingers in their ears and pretend that everything in small town USA is just find the way it is, thank you very much.

Worse yet, people who are “for” the amendment either don’t know and don’t have the opportunity to know more about the amendment, because their leaders only allow one point of view to be heard.  It is these leaders, whether political or religious, who will carry the most shame at the end of the day.  Listening is one of the best skills a leader can employ.  Too many of the leaders in this debate have forgotten how to listen.

Along the way in my journey to explore the truth of Amendment One, I have shared guest posts with real stories, because you cannot divorce the legal issues from the effects Amendment One will have on real people. 

Most recently, I posted an article from a Baptist minister who shared real stories about real people.  She shared her faith.  She is gay.  She spoke honestly and eloquently about how Amendment One will hurt people and how it goes well beyond marriage.  She did so with the hope that others would listen.  And while I am sure that many did listen, there are those who did not.   

In fact, until this morning, I had posted every comment I ever received on this site.  But as the administrator, I have the privilege of not posting a comment, if it is mean-spirited.

This morning, I had a comment from someone I did not post.  She claimed to know the Bible, know it so well that she felt qualified to judge others.  She judged the Baptist minister and she did so in harsh terms.  She claimed to be a God-fearing Christian, and it was clear in her message she is voting “for” the amendment for that reason, while at the same time, it is clear that she condemns all homosexuals, including the minister.  She said she was going to pray for the minister.

In my opinion, we don’t need the prayers of this person,, nor her judgmental invective.  What we need is for her to listen with an open heart and open mind.

I have no problem with people whose faith tells them that marriage is between one man and one woman.  I have not tried to change people’s minds about their faith.  And if this amendment were solely about marriage, like the original house bill, then their faith-based position would relate directly to their vote on May 8th.  But they have been deceived.

Were people to listen, would it be possible for them to separate the Bible from the Constitution?  Would it be possible for them to separate the term “marriage” from the term “domestic legal union”?  Would it be possible for them to recognize that causing harm to others, with amendment language that is broader than just marriage, is perhaps, just perhaps, a reason for second thoughts?

I think so.  I think that when people of faith learn the facts and when they are guided by their hearts and not by politics (whether it be civil or religious politics), then yes, there is a chance that people will be able to separate fact from fiction.  

But when I turn on the TV, or search the internet, or read the paper, and I see that people are not listening, it feels like my 40 previous posts have been posts in the wilderness.

My posts, and the message of many others who have tried to get to the truth of Amendment One, have been (to many people) like trees that fall in the forest when they are not there.  They don’t really make a sound, right? 

If the “for” side refuses to listen, if they continue to try to define this debate in terms of “marriage”, if they continue to assume that this debate is about the Bible and not about the Constitution, then woe are we, as a civilized society.

But I have faith.

I have faith, because there are others who are with me, others who are crying in the wilderness.  

And one day, if not by May 8th, history teaches us that a voice crying in the wilderness eventually will be heard.

Posted in Twists and turns | 3 Comments

Guest Post – Why this Baptist Minister is Voting “No” on Amendment One: Real People, Real Stories

This post is coutesy of Rev. Dr. Angela Yarber who is Pastor for Preaching and Worship at Wake Forest Baptist Church at Wake Forest University.  She has a PhD in Art and Religion from the Graduate Theological Union at UC Berkeley and is author of Embodying the Feminine in the Dances of the World’s Religions, along with numerous articles about the intersections of religion, the arts, sexuality, and gender.  She has been a clergy woman, professional dancer and artist since 1999.  For more on her research, ministry, and arts, see www.angelayarber.com

You have already heard about what exactly Amendment One could do in North Carolina, so I’m not going to spend my time rehashing these possibilities.  Instead, I want to share why I’m voting “no” on Amendment One based my religious tradition.

Noting that I am pastor of a Baptist church may, indeed, raise an eyebrow when you consider that I—along with the folks at WFBC—are against Amendment One.  As you drive through Winston-Salem and the surrounding areas, there is no doubt that you will pass an array of signs in front of churches encouraging voters to “protect marriage” by voting for the Amendment.  It is true that many of said churches are Baptist.  Because of Baptist polity that emphasizes local church autonomy and liberty of conscience, each individual congregation and each individual member within that congregation can determine what to believe and where to stand on theological and political issues.  This is why you have Baptist churches as far right as Fred Phelp’s Westboro Baptist Church and as far left as ones like WFBC; there is no denominational hierarchy or Book of Order that dictates what we believe or where we stand.  Nonetheless, there are countless Baptist churches—and an array of other congregations from a variety of traditions—who are adamantly against Amendment One.  So, I’d like to share with you a few of the reasons why I plan to vote “no.”

I’m voting “no” because I am a scholar who listens to history.  I know that it wasn’t until 1869 that the words homo and heterosexual were even used in public discourse, let alone in relation to scripture and religion.  As someone who lives the supposed “homosexual lifestyle” on a daily basis—with my incredibly threatening regimen of waking up, exercising, going to work as a pastor, returning home to eat a vegetarian dinner with my partner, watching Glee, and going to sleep only to repeat this threat to traditional family values the next morning—I believe that the time is past for the LGBT community to continue tolerating being treated like second class citizens.  Gays and lesbians in North Carolina are already denied the over 1,000 rights and privileges granted to married couples; this amendment is not going to change that.  We’ll still be denied those 1,000+ rights.  What the amendment will do is kick us while we’re down.  When the LGBT community is not afforded those marriage rights given to every other citizen, or protected from being fired on the basis of their orientation, or denied the right to file for joint adoption, this Amendment proposes that the state go ahead and trample on our heads anyway.  And the prophet Amos had something to say to those well-to-do who trample on the heads of those who are mourning: “Woe to you!”

We have heard about what could happen to the rights of so many North Carolinians—both gay and straight—if this Amendment passes.  If it does not pass, will anyone’s rights be diminished?  Will anyone’s relationship, marriage, or family be scrutinized, put under fire, or questioned?  No.  In these ways, the conversation is quite simple.  If Amendment One passes, thousands of people could be hurt and have their rights taken away.  If Amendment One does not pass, nothing will change.

More importantly I’m voting “no” on Amendment One because I am a pastor.  I’m voting “no” for my congregants, Judy and Teena, who have been a committed couple for 24 years and because Teena works for a public agency, her loving partner’s health care could be taken away if this amendment passes. I’m voting “no” because 12 year-old Justin gets punched in the face on the school bus while kids tell him to “burn hell f****** faggot.”  We’ve witnessed the rash of teen LGBT suicides because kids are made to feel like they are not equal to everyone else in school.  Passing this amendment will only make kids like Justin continue to feel like they do not belong and that they are not welcomed or loved inNorth Carolina.

I’m voting “no” because Fred’s partner of 35 years died and his homophobic family swept in and took their shared home away from Fred.  When Fred spent his hard-earned money taking his now-deceased partner’s family to court simply so that he could remain in their shared home, the judge looked him in his grief-stricken eyes and said, “Boy, I reckon you’ve lived there long enough.  Get your stuff out by the end of the day.”  Because Fred and his partner were legal strangers in the eyes ofNorth Carolina, there was nothing he could do.

I’m voting “no” because, like Judy and Teena, Tim also works for a public agency, providing healthcare for his partner and their foster son, Derrick.  Derrick needs braces and the family has already determined that Derrick will only get the braces he needs if the Amendment does not pass because they could not afford it otherwise.  Because of the many ways this Amendment could adversely impact people in my congregation, we do have a number of families who are seriously considering relocating to another state.

I share these stories with you because I think that my congregation is a microcosm, a small sampling of the state.  If this many people in my own congregation could be impacted in such drastic and life-changing ways, imagine the stories of other people, families, children who will also be impacted.  Imagine what it would feel like to have your ability to visit your dying spouse in the hospital questioned.  Imagine what it would feel like to take a second job simply so you can pay for your health care that was taken away.  Imagine being bullyed on a daily basis because you are perceived to be gay simply because your bully goes to a church that demonizes the LGBT community and you live in state that refuses to protect you.

Tomorrow I will officiate a wedding of a fabulous lesbian couple.  In two weeks I’ll do the same for another couple.  When these couples bind their hearts and lives together in a committed and covenantal relationship, they receive no benefits or recognition from the government.  They are simply participating in a sacred act within the confines of their faith community.  Amendment One will do nothing to change this.  Many who support this Amendment say that passing it will prevent the threat to marriage.  But I would surmise that Amendment One actually has very little to do with marriage.  This Amendment will actually have no impact on married couples, whether it passes or not.  But since so many are worried that their marriages are being threatened I feel the need to offer a brief response.

First and foremost, to those worried about a threat to their marriage, I would remind them that this Amendment will do nothing of the sort.  What is a threat to marriage is infidelity and divorce.  And while we’re at it, as a scholar of religion and pastor, I would add that there are, indeed, some elements of marriage that need to be threatened.  The fact that the average American wedding costs $20,000, for example, is quite an ethical travesty when so many people are jobless and hungry; if we can threaten this consumer excess and material waste, let’s threaten it.  The countless women who are made subservient to their male husbands—that’s an element of marriage that’s worthy of threat.  The fact that our country elevates the status of couples, while diminishing the value of being single—that should be threatened.

Additionally, based on religious tradition and history, marriage is a sacrament or ordinance, something that is done within the confines of the holy rituals of faith communities; in these ways, marriage is an act of worship.  The last time I checked, the state doesn’t tell me how to plan worship at my church.  The government doesn’t dictate who I baptize or who can receive communion.  Why on earth should the state dictate who clergy choose to marry?  Perhaps the sanctity of marriage could be restored if we left marriage up to local churches and legal contracts up to the government rather than conflating the two.  If a particular church has theological problems with marrying same-sex couples, they don’t need to let them marry in the same way that they are not obliged to let them receive communion or get baptized.  If same-sex couples desire to marry, you can send them in the direction of WFBC.  Clearly, marriage is not a system without flaws.  But, like I said, this Amendment isn’t really about marriage.  Rather this Amendment is about taking away the rights of people and communities already oppressed and marginalized.  I’m no legal scholar, but I do know that the function of the constitution is to protect people and amendments are proposed to help ensure the rights of all human beings, not take them away.

I’m voting “no” on Amendment One because I believe the admonition from the Gospels to love my neighbor.  When I look around the state I can’t help but notice that my neighbors are gay and straight, married and unmarried, seniors and young adults.  Call me crazy, but I think that all my neighbors deserve legal protection.  Finally, I’m voting “no” because, as an ordained Baptist minister whose Catholic partner is a professor of Christian and Family Ethics, I think we are a couple who knows a little something about the sanctity of marriage, about the rights of families and citizens, and about the life-changing, never-ending, always accepting-love of Jesus Christ.  I’m voting no on Amendment One and I implore you to do the same.

Posted in The Bible tells me so | 1 Comment

News Report: Amendment One Brings Ambiguity to the NC Constitution

This article and video was on www.digtriad.com, WFMY News 2.  It focuses on Amendment One and features the legal expertise of several law professors, including Suzanne Reynolds of Wake Forest Law School. At the end of this post is the link to the video of the broadcast.

What if the government told your boss he or she could not provide benefits to your spouse or even your children? You might have a problem with that. While it might sound unbelievable that the government would take away those benefits, some fear that could happen here in North Carolina.

We’re talking about Amendment One. It’s the amendment some call the “gay marriage amendment,” but this amendment is about a whole lot more than marriage. It’s also about benefits and economics.

Read: Local Universities Hold Panel Discussions About Amendment One

The first sentence of Amendment One says, “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.”

Here’s the problem: it’s unclear what “domestic legal union” actually means.

“They’re trying to enact a relatively broad ban on any sort of gay marriage. But, they’re doing it through a term that hasn’t been construed through the courts,” Elon Law University Professor Mike Rich said. “The legislature hasn’t defined it for us. So, ultimately, if the amendment passes, there’s going to have to be a lot of litigation over what exactly that term means.” 

When you add words to our state constitution, it leads to lots of interpretation. So, if Amendment One passes, and it’s vague, it opens the door to a lot of legal questions. For example: Will schools, police departments, cities, any publicly funded employer be required to deny benefits to any couple not legally married?

“Every time language like this has been interpreted by a court or by an attorney general, the conclusion has been that municipalities are forbidden from extending benefits to the domestic partners of their employees. There’s every reason to expect that would happen also in North Carolina,” Wake Forest University Law Professor Suzanne Reynolds said.

Thirty states have some kind of marriage amendment in place. Idaho and South Carolina are the only that have language as broad as what’s proposed for our state.

In addition, there is a second part of Amendment One that will not appear on the ballot itself, but is part of the proposed law. It reads, “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.”

Reynolds said, “The second sentence is written in a really ambiguous way. Proponents say the language of that second sentence protects private contracts. But, that’s not exactly what the language of that second sentence says. So, no one can be sure.”

Finally, there’s the question of whether this is even legal at all under our federal government.

“It’s my opinion that Amendment One would violate the Federal Constitution. Under the 14th Amendment, the United States Supreme Court said you cannot pick out a certain class of people and then pass legislation just to burden them,” Reynolds said.

So, does voting for Amendment One mean any unmarried straight or gay couples will lose benefits? If it passes, that question will ultimately have to be answered by the courts.

http://www.digtriad.com/news/article/225626/1/Understanding-North-Carolinas-Proposed-Amendment-One

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Oh, the places I’ve been – Catholics last night, Baptists tonight- Amendment One Outline included

Last night I was with the Catholics at St. Peter’s Catholic Church.  Tonight, I spent time with the Baptists at St. John’s Baptist Church.

Believe it or not,  the two faith communities had a lot in common.

They both were attentive, respectful and interested in learning more about the Amendment. They both asked good questions and made insightful comments, and all of this talk and listening occurred, yes, in houses of worship.

I know, I know.  People will say that I was visiting liberal churches in these two denominations.  And to that I say, thanks for the clarification.  Maybe that is why I was invited to speak on the legal issues of Amendment One.  Maybe that is why they were so respectful, attentive and open-minded.  Maybe that is why they were willing to consider that Amendment One might be about more than just marriage.

So what did I learn on this back to back speaking adventure? I learned that religion does have a place in this debate, but not necessarily the kind of place we see on the front page, where pastors and priests are proclaiming how their congregations “should” or “must” vote to align themselves with God.  The houses of worship I visited were places of faith without theatrics, places where people let their faith guide them but not control them, and places where people were not afraid to listen to some of the facts about the Amendment.

Below is the PowerPoint I used for the discussion at St. John’s (I had to change the look to make it fit in this blog).  In it, I provide details about the Amendment, and I discuss actual and possible harms of the Amendment.  There are a lot of legal uncertainties, which in and of itself, is one of the potential harms.  I hope you find this outline helpful.

                                                 Amendment One:The Facts 

A St. John’s Baptist Church Discussion 

NC Amendment One Truth

https://ncamendmentonetruth.wordpress.com

 __________________________________________________________________

When and How

Q.  When will the vote take place? A.  May 8, 2012.

Q.  How many votes does it take to pass or defeat the proposed amendment? A.  50%, plus one.  A simple majority

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The Devil is in the details

  • Myth:  The amendment is simply designed to protect marriage between one man and one woman.
  • Myth:  The amendment has no consequences beyond preventing gay marriage.
  • Lesson:  Read the amendment.
  • Lesson:  Don’t believe everything supporters say about the amendment.

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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)

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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”.

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Existing NC Law

Q.  Does the law in NC currently prohibit same-sex marriage?

A.  Yes.  NCGS 51-1.2 says that “[m]arriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina”.  (added 1995)

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Why the desire for the Amendment?

  • A Constitutional amendment cannot be changed by the legislature.
  • Supporters of the amendment fear what they call “activist judges”, meaning any judge who might strike down the current statutory prohibition on same-sex marriage on constitutional grounds.

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The hidden attack on civil unions

Q.  Does the amendment do more than prohibit same-sex couples from marrying?

A.  Yes, If it passes, the legislature would be prohibited from approving civil unions short of marriage for same-sex couples.

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Civil Unions v. Marriage

  • 9 states allow civil union (or domestic partnership) recognition for same-sex couples.

–         California, Delaware, Hawaii, Illinois, New Jersey, Nevada, Oregon, Rhode Island; Washington

  • The laws in these states afford important legal rights to committed same-sex couples, similar to the rights granted married couples.
  • Yet, the civil union laws in these states do not include recognition of same-sex marriage.

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Examples of marriage rights that couldbe granted through civil unions

  • 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

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Might this be a trick question?

  • Polling suggests that more than 50% of NC voters would be “for” the amendment, as they understand it.
  • However, polling also shows that if the question asked was whether civil unions short of marriage should be available to same-sex couples, more than 50% would support that initiative.

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Interesting legislative history

Original House Bill 777

  • Marriage is the union of one man and one woman.  No other relationship shall be recognized as a valid marriage by the State.

Original Senate Bill 106

  • Marriage between one man and one woman is the only domestic legal union that shall be recognized in the State.  (no second sentence)

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Strange constitutional book-ends

Section 1 of NC Constitution

  • We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.

Proposed last Article, last section

  • Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.  [Plus second sentence allowing the formation of private contracts]

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Constitutional Amendments

Publication Commission Says:

  • The term “domestic legal union” used in the amendment is not defined in North Carolina law.
  • There is debate among legal experts about how this proposed constitutional amendment may impact North  Carolina law as it relates to unmarried couples of same or opposite sex and same-sex couples legally married in another state, particularly in regard to employment-related benefits for domestic partners; domestic violence laws; child custody and visitation rights;  and end-of-life arrangements.
  • The courts will ultimately make those decisions.

__________________________________________________________________

Constitutional Amendments

Publication Commission Also Says:

  • The amendment also says that private parties may still enter into contracts creating rights enforceable against each other.  This means that unmarried persons, businesses and other private parties may be able to enter into agreements establishing personal rights, responsibilities, or benefits as to each other.
  • The courts will decide the extent to which such contracts can be enforced.

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Lesson from the Commission

  • This amendment creates uncertainty in the law.
  • This amendment could negatively impact unmarried couples of the same and opposite sex.
  • This amendment could negatively affect children.
  • This amendment will lead to litigation.

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Quick Comparison Among States

  • Six states allow same-sex marriage

–         By legislature (New York, Vermont, New Hampshire)

–         By Court (Massachusetts, Connecticut, Iowa)

–         District of Columbia also allows.

  • 37 states have laws declaring marriage to be between one man and one woman.
  • 30 states have various forms of Constitutional amendments restricting marriage to one man and one woman.

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Comparison of Amendment Types

  • A number of State amendments focus on marriage only for one man and one woman, and do not bar same-sex civil unions.
  • Some State amendments prevent same-sex marriage and any equivalent status like a civil union or domestic partnership.
  • Only a few states have language like is as broad as the NC language (i.e. Idaho) – “only domestic legal union…valid or recognized…”.

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Definite Impacts of Amendment One

  • Legislature cannot pass law to allow same-sex marriage.
  • Legislature cannot pass law to allow any civil unions or domestic partnerships that offer similar marriage benefits to same-sex couples without calling it marriage.
  • Municipalities can no longer provide domestic partner benefits to unmarried couples (same-sex and otherwise)
  • There will be uncertainty in the law and potential for other harms caused by the amendment.

__________________________________________________________________

Potential Impacts of Amendment One

(for all unmarried couples)

  • Has potential to invalidate domestic violence protections.
  • Has potential to interfere with child custody and visitation rights.
  • Has potential to invalidate trusts and wills.
  • Has potential to invalidate health-care powers of attorney and end-of-life directives in favor of unmarried partners

__________________________________________________________________

Potential Business Impact

  • Amendment One could be bad for business.
  • An overwhelming majority of Fortune 500 companies prohibit discrimination on the basis of sexual orientation.
  • NC Business leaders, republicans and democrats, have come out against Amendment One.
  • If the amendment fails to pass, NC will set itself apart from all other Southern states as being more inclusive and open to diversity.

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Are the alleged threats real?

To religious freedom:  Churches will not be required to marry same-sex couples.  The law respecting separation of church and state prevents the state from telling churches who they decide to marry based on their religious beliefs.

To heterosexual marriage:  Statistics show that same-sex civil unions or same-sex marriage will not be a threat to marriage between one man and one woman.  States with high divorce rates among heterosexual couples have marriage amendments, while states with low divorce rates among heterosexual couples do not.

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Education is critical

  • Voters should know that they are voting on more than just same-sex marriage.
  • Voters should know that there already is a NC law prohibiting same-sex marriage.
  • Voters should know that families will lose benefits if the amendment passes.
  • Voters should know about other harms that will and might be caused by this amendment.

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Can one be against same-sex marriage and against the Amendment?

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).

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Truth and Consequences

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, many will be affected and there will be lasting pain and lingering uncertainty.

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Final Thoughts

  • Cowboys Are Frequently, Secretly Fond of Each Other” – Willie Nelson
  • Should anyone’s religion be embedded in our constitution?
  • Legal prejudice will not prevail in the long run – let “Loving” be our guide

                            https://ncamendmentonetruth.wordpress.com

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