North Carolina Amendment 1

County-level results of the vote on Amendment 1, amending the N.C. state Constitution to ban legal recognition of same-sex marriages and civil unions.

North Carolina Amendment 1 (often referred to as simply Amendment 1) was a legislatively referred constitutional amendment in North Carolina that proposed to amend the North Carolina Constitution that makes it unconstitutional for the state to recognize or perform same-sex marriages or civil unions. The amendment did not prohibit domestic partnerships.[1][2] On May 8, 2012, North Carolina voters approved the amendment, 61.04% to 38.96%, with a voter turnout of 34.66%.[3]

State law had already defined marriage as being between a man and a woman prior to its passage.[4] The amendment was found unconstitutional in federal court on October 10, 2014.

Full text

ARTICLE XIV, Section 6 of the Constitution of North Carolina, as amended, states:[5]

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.

Legislative approval

Senate Bill 514 was introduced in the 2011 legislative session North Carolina.[6] Sponsored by Republican State Senator Peter Brunstetter, the bill was passed by the North Carolina General Assembly in September 2011.[7]

Final voting on SB 514 was as follows:

In the House:

  • 75 Aye
  • 42 No
  • 2 Not Voting
  • 1 Excused Absence

In the Senate:

  • 30 Aye
  • 16 No
  • 4 Excused Absences

Ten House Democrats voted "aye": William Brisson, James W. Crawford, Jr., Elmer Floyd, Ken Goodman, Charles Graham, Dewey L. Hill, Frank McGuirt, William C. Owens, Jr., Garland E. Pierce and Timothy L. Spear. All House Republicans voted "aye" except for those who did not vote: D. Craig Horn, Chuck McGrady and Glen Bradley. All Senate Democrats voted "no" except for those who did not vote: Eric L. Mansfield (who publicly opposed the bill but was absent due to a planned wedding anniversary trip),[8] Michael P. Walters and Stan White. All Senate Republicans voted "aye", except for one who did not vote, Fletcher Hartsell.[9]

Bill information

The long title of Senate Bill 514 is: "An Act to Amend the Constitution 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."

The bill proposed to add a new section to article XIV, which covers miscellaneous provisions. The sections of the bill were:[6]

"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."

Specifies that the amendment shall be submitted to voters, and defines the ballot text.

Specifies that a simple majority vote is required for approval.

Specify that the amendment will become effective when it is certified by the Secretary of State.

Potential effects

In a study by Maxine Eichner, Barbara Fedders, Holning Lau, and Rachel Blunk of the University of North Carolina School of Law, the authors discussed how the wording in the proposed amendment could have legal implications beyond banning marriage between same-sex couples.[10] A white paper authored by Lynn Buzzard, William A. Woodruff, and Gregory Wallace of Campbell Law School disagreed with many of those claims.[11]

Employee benefits

Some said that all unmarried couples, both same-sex and opposite-sex, and their children that are receiving domestic-partner benefits as public employees would no longer be eligible for those benefits under this amendment.[12][13] The second sentence in the amendment sought to address this issue by continuing to allow private-party contracts between employees and employers. For example, a private company could agree to extend health benefits to employees and their partners.[14] However, since "domestic legal union" was untested language in the courts, the issue was considered likely to face litigation to determine what the actual meaning would be and how it would be implemented.[15]

Legal protections

In addition to restricting benefits to couples in domestic partnerships, the amendment could have also stripped protections for unmarried couples such as domestic violence and stalking protections.[12][13] If the courts had determined that the language used in the amendment invalidates protections for unmarried couples it could have harmed domestic-violence protections for that population.[16] After passing a similar constitutional amendment in Ohio, several courts ruled that domestic violence protections did not apply to unmarried couples and cases were dismissed or told not to press charges.[16] The courts could have determined that validation of unmarried couples domestic legal union status would violate the amendment.[10] However, the counter argument was that North Carolina's domestic-violence statutes were better defined and included protections for unmarried couples.[17]

North Carolina Statute 50B-1, Domestic Violence, states:

(b) For purposes of this section, the term "personal relationship" means a relationship wherein the parties involved:
(1) Are current or former spouses;
(2) Are persons of opposite sex who live together or have lived together;
(3) Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16;
(4) Have a child in common;
(5) Are current or former household members;
(6) Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship. For purposes of this subdivision, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.[18]

Adoption and child-visitation protections were also in question. While North Carolina only allows adoption by one unmarried adult,[17] there are cases where children are adopted by two unmarried adults (including same-sex couples) in other states and are now living in North Carolina. Since those relationships would not have been recognized under Amendment One, there were potentially serious consequences. In Potential Legal Impacts of the Proposed Same Sex Marriage Amendment, the authors concluded that in child-custody disputes "judges may interpret [amendment one] as an expression of public policy against all non-marital relationships. This interpretation may have caused judges to view such relationships as having a per se negative impact on a child, and fashion custody orders accordingly.[10] They also said that in custody disputes between a parent and non-parent, the courts could decide that one parent's relationship is impermissible since it would validate a domestic legal union other than heterosexual marriage.[10] As with the other protections in question it seemed that the courts would have to decide what the actual interpretation and implementation will be in this area.

Other areas of protection that were under question included hospital visitation, emergency medicals decisions, and disposition of deceased partner's remains.[12][13] Although there are legal documents that can help protect medical and financial security (power of attorney, living will, medical power of attorney), these could have been contested in court based on the argument that they recognize a domestic legal union between the two parties.[10] Issues in estate planning could have arisen through increased litigation contesting wills of unmarried individuals, particularly those in same-sex relationships.[10] Again, the courts could have ruled that any recognition of a domestic legal union between unmarried partners would be unconstitutional and therefore rule those wills and trusts invalid.[10]

Economics

In addition to legal implications, there were concerns that the amendment would harm economic development and vitality. Some felt that business's employee recruitment and retention would be hurt if the most talented prospects did not feel that North Carolina was progressive or representative of their beliefs.[19] Many Fortune 500 companies have implemented policies protecting employees against discrimination based on sexual orientation, which would not be affected by such legislation.[19]

Public knowledge

An April 2012 Public Policy Polling found that only 40% of North Carolina voters actually knew that Amendment 1 bans both same-sex marriage and civil unions, and among those voters who do know the effects of Amendment 1, they opposed it with 60% against and 38% in favor. Among the 27% of voters who thought Amendment 1 banned same-sex marriage only, they supported it with 72% in favor and 27% against, and with voters who didn't know what Amendment 1 did, they supported it with 64% in favor and 28% against. Among North Carolina voters who were informed about the effects Amendment 1 banning same-sex marriage and civil unions and then asked how they would vote, only 38% continued to support it, 46% against it, and 16% were unsure. When combined those who do and don't know the effects of Amendment 1 it found that 55% would vote for it, 41% would vote against, and 4% were unsure. It also found that 55% of North Carolina voters support legal recognition of same-sex couples with 27% supporting same-sex marriage, 28% supporting civil unions, 41% oppose any legal recognition of same-sex couples, and 4% were unsure. When asked what the effects of Amendment 1 would be, 40% of voters thought that Amendment 1 banned same-sex marriage and civil unions, 27% thought it banned same-sex marriage only, 26% were unsure, and 7% thought it legalized same-sex marriage.[20]

Election spending

The campaigns were fueled by more than $1,000,000 in spending by the pro-amendment coalition Vote For Marriage NC and $2,000,000 in spending by the anti-amendment group Coalition to Protect North Carolina Families.[21][22] Big donors, making more than $10,000 contributions, were the main source of funds. The Human Rights Campaign, a pro-gay rights group, gave more than $256,000 to the Coalition to Protect NC Families while the National Organization for Marriage (NOM) contributed more than $427,000 to Vote For Marriage NC.[23]

Results

Amendment 1[24]
Choice Votes %
Referendum passed Yes 1,317,178 61.04
No 840,802 38.96
Total votes 2,157,980 100.00
Registered voters and turnout 6,296,759 34.66

Of the 100 counties of North Carolina, only Buncombe (home to Asheville), Orange (home to Chapel Hill), Durham (home to the city of Durham), Wake (home to Raleigh), Mecklenburg (home to Charlotte), Chatham, Watauga (home to Boone and Appalachian State University), and Dare voted against Amendment 1. Of the eight counties that voted against Amendment 1, six of them would vote for Barack Obama in the 2012 election, while Watauga County and Dare County voted for Mitt Romney.

Controversy

The timing of the vote on Amendment 1 is considered by many to be controversial in that it was voted on during the lower-turnout North Carolina primary election rather than during the general election for US President when voter turnout is typically higher. Furthermore, whereas the Republican primary was an active contest, the Democratic primary was effectively uncontested and thus expected to have an even further reduced turnout of the Democratic electorate. It is argued that by selecting this primary date rather than the general election, the North Carolina Republican-controlled legislature circumvented the democratic-spirit of a public vote on the issue.

Response

The day after Amendment 1 passed its public vote, expressing disappointment in the outcome,[25] US President Barack Obama announced his support for same-sex marriage.[26][27][28]

Legal challenges

On July 28, 2014, the U.S. Court of Appeals for the 4th Circuit affirmed a lower court ruling in Virginia in favor of the freedom to marry, declaring that banning same-sex couples from marriage is unconstitutional. The decision affirmed the February 13 ruling from U.S. District Court Judge Arenda L. Wright Allen in Bostic v. Schaefer, in which same-sex couples sought the freedom to marry and respect for their marriages legally performed in other states. On October 6, the United States Supreme Court denied review of this case, meaning that same-sex couples would have the freedom to marry in Virginia.

Since the 4th Circuit also covers Maryland, West Virginia, North and South Carolina, the decision by the Supreme Court to refuse review meant the 4th Circuit decision stood as case law in the other states. With the exception of Maryland, where same-sex marriage was already legal, court cases were promptly filed to strike down various state laws and amendments.[29]

Shortly after 5 p.m. on Oct. 10, 2014, U.S. District Court Judge Max O. Cogburn, Jr. in Asheville issued a ruling in the case of General Synod of the United Church of Christ, et al. v. Drew Reisinger, Register of Deeds of Buncombe County, declaring the amendment approved by state voters in 2012 "and any other source of state law that operates to deny same-sex couples the right to marry in the State of North Carolina or prohibits recognition of same-sex marriages lawfully solemnized in other States, Territories, or a District of the United States, or threatens clergy or other officiants who solemnize the union of same-sex couples with civil or criminal penalties" unconstitutional.[30] [31]

"Today's ruling allowing loving, same-sex couples to marry across North Carolina is a historic moment for our state," said Chris Sgro, executive director of Equality NC. "With it, we celebrate with so many North Carolinians who have worked tirelessly over decades to change hearts, minds, and unequal laws in the state we call home. Love won and the barriers to it are done."[32]

Shortly after Cogburn's ruling, the Registers of Deeds in several North Carolina counties reopened (or had previously extended hours in anticipation of the ruling) to issue marriage certificates to same-sex couples that had been waiting for several days.

See also

References

  1. ↑ Amendment One, North Carolina Public Employers, and Domestic Partner Benefits
  2. ↑ THE LEGAL IMPACT OF AMENDMENT ONE
  3. ↑ Weiner, Rachel (May 8, 2012). "North Carolina Passes Gay Marriage Ban Amendment One". The Fix by Chris Cillizza (blog of The Washington Post). Retrieved May 9, 2012.
  4. ↑ "NC General Statutes, Chapter 51". North Carolina General Assembly.
  5. ↑ Full text of the North Carolina State Constitution
  6. 1 2 "Senate Bill 514" (PDF format).
  7. ↑ "General Assembly of North Carolina Session 2011 SB514". North Carolina General Assembly. Retrieved September 14, 2011.
  8. ↑ Pitts, Myron (September 15, 2011). "Pitts: Mansfield Defends Putting His Marriage First". The Fayetteville Observer. Retrieved May 9, 2012.
  9. ↑ "Senate Bill 514 / S.L. 2011-409". North Carolina General Assembly. Retrieved September 14, 2011.
  10. ↑ April 2012. Campbell White Paper voteformarriagenc.com Retrieved May 10, 2012.
  11. 1 2 3 "Marriage Amendment Would Affect Many People, Panel Says". Winston-Salem Journal. Retrieved April 23, 2012.
  12. ↑ "North Carolina Marriage Protection Amendment Fact Sheet". Archived from the original (PDF format) on April 21, 2012.
  13. ↑ Geary, Mark (April 18, 2012). "Understanding North Carolina's Proposed Amendment One". Archived from the original on April 21, 2012.
  14. 1 2 Shapiro, Lila (April 9, 2012). "Same-Sex Marriage: North Carolina's Proposed Ban, Amendment One, Could Create 'Legal Chaos'". The Huffington Post. Archived from the original on April 21, 2012.
  15. 1 2 Darst, Brittany (April 20, 2012). "Amendment One – Fact and Fiction". Archived from the original on April 22, 2012.
  16. ↑ "Chapter 50B". Archived from the original on April 21, 2012.
  17. 1 2 "Biz Owners: Amendment One Could Harm Business Economic Development". Archived from the original on April 21, 2012.
  18. ↑ "Amendment One still up 14 points in N.C." (PDF). May 1, 2012. Retrieved June 7, 2013.
  19. ↑ Dalesio, Emery P. (May 7, 2012). "North Carolina Amendment One: Proposed Gay Marriage Ban Draws National Attention". Associated Press (via The Huffington Post). Retrieved May 9, 2012.
  20. ↑ Gordon, Michael (May 9, 2012). Amendment One: N.C. Voters Approve Measure To Block Same-Sex Marriage". The Charlotte Observer. Retrieved May 9, 2012.
  21. ↑ Blumenthal, Paul (May 9, 2012). "Amendment One N.C.: Anti-Gay Marriage Donors". The Huffington Post. Retrieved May 9, 2012.
  22. ↑ North Carolina Board of Elections
  23. ↑ http://www.cnn.com/2012/05/09/politics/obama-same-sex-marriage/
  24. ↑ https://www.whitehouse.gov/blog/2012/05/10/obama-supports-same-sex-marriage
  25. ↑ http://www.nytimes.com/2012/05/10/us/politics/obama-says-same-sex-marriage-should-be-legal.html
  26. ↑ http://www.wsj.com/articles/SB10001424052702304070304577394332545729926
  27. ↑ http://www.freedomtomarry.org/litigation/entry/4thCircuit
  28. ↑ http://www.news-record.com/news/amendment-one-struck-down/article_40763ce2-5099-11e4-84c9-001a4bcf6878.html
  29. ↑ Memorandum of Decision and Order from U.S. District Court for the Western District of North Carolina
  30. ↑ http://www.newsobserver.com/2014/10/10/4222691_the-wait-for-gay-marriage-in-north.html?sp=/99/100/&rh=1

External links

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