On North Carolina's Especially Disturbing "Defense of Marriage" Amendment

On May 8, 2012, North Carolina voters will consider Amendment 1, a ballot proposition that would inscribe a ban on same-sex marriage in the North Carolina Constitution. The key clause of the amendment asserts that marriage "between one man and one woman is the only domestic legal union that shall be valid or recognized in this State."

North Carolina law already bans marriage equality but, absent a constitutional amendment, existing law would be subject to state court challenge. In addition to precluding such a challenge, opponents of the North Carolina measure note that the broad language of the amendment could result in the denial of a wide range of rights and protections to non-married couples -- gay and straight -- on the grounds that those relationships would be barred from legal recognition if the amendment passes.

Supporters of the ban, including Vote for Marriage NC, insist that such dire warnings are unfounded. However, they have failed to provide serious legal analysis of the potential implications of the proposed amendment. By contrast, a group of law professors at UNC-Chapel Hill has offered a detailed assessment of the possible effects of the amendment on existing rights and protections, as well as its potential consequences for future legislation.

Some of their analysis is necessarily speculative, since it's impossible to know how courts will rule on issues until they actually do and because the language of the amendment is dangerously vague. However, the record in other states that have passed similar marriage bans is sobering. For example, after Ohio amended its constitution to ban same-sex marriages, courts in that state spent nearly three years adjudicating claims about whether domestic violence protections applied to non-married relationships.

Vote for Marriage NC has dismissed that example by asserting that the Ohio Supreme Court ruled that the state's marriage amendment didn't require the removal of those protections to non-married relationships. But Vote for Marriage NC has failed to mention that on 27 separate occasions, lower courts in Ohio assumed they were barred from extending domestic violence legal protections to those couples before the state's Supreme Court definitively resolved the issue.

Similarly, the UNC professors' analysis shows, Nebraska's attorney general interpreted that state's ban to mean partners in legally non-recognized relationships couldn't tend to a deceased partner's affairs, including disposal of his or her remains. Other examples from around the country point to similar possible outcomes.

Among other consequences, passage of Amendment 1 would almost certainly require North Carolina courts to eliminate domestic-partner benefits that some municipalities currently extend to same-sex couples.

It could also render unlawful future legislative attempts to extend even minimal rights and protections to couples not legally recognized as married.

Nationwide, there are two especially common claims among opponents of marriage equality. One is that allowing same-sex couples to marry constitutes a grave threat to "traditional marriage" because changing the definition of marriage to include same-sex couples would alter the meaning of marriage for everybody and to demean the institution. Marriage is said to be cheapened because it has been redefined, and the redefinition is the only evidence to demonstrate its cheapening. Commonly, proponents of such bans assert that their preferred religious understanding of marriage should be the prevailing legal one and that the discussion ought to begin and end with that assertion. When trying to fudge the religious issues and to assert some more generalized harm to society, proponents have struggled to provide any compelling evidence that extending marriage rights to same-sex couples bears some causal relationship to the diminution of marriage rates among opposite sex couples.

The other key claim is that only opposite-sex couples provide an appropriate and legally valid environment in which to raise children. Vote for Marriage NC, for example, asserts "marriage is unique because it is the social institution we recognize to channel the biological drive of men and women with its inherent capacity to produce children into the ideal family units" and that "It is because of children that government regulates and licenses marriage."

Fortunately, claims about the best settings for child raising have been subjected to careful empirical scrutiny. In 2010, California was the site of a federal trial concerning Proposition 8, the ballot measure that banned gay marriage in in that state. The Proposition 8 trial offered perhaps the most intensive factual examination in a legal setting ever undertaken in the U.S. for claims about the consequences of extending marriage rights to same-sex couples.

After detailed testimony, Judge Vaughn Walker, a Reagan appointee, ruled the ban unconstitutional (a ruling that the federal appeals court for the ninth circuit upheld this week). But the 138-page decision was striking because of the findings of fact on which the court ruled. Judge Walker found that supporters of the ban failed to provide any real evidence that gays were less capable of forming lasting and committed bonds with partners, raising children or otherwise benefiting from relationships that were the equivalent of marriage. (Unable to poke serious holes in his legal analysis, some supporters of Proposition 8 have made much of the fact that Judge Walker is gay, as if only a straight judge could be counted on to rule objectively on the legal status of marriage.)

Ultimately, Judge Walker ruled, Proposition 8 "enacted a private moral view without advancing a legitimate government interest." On the specific question of whether same-sex couples can raise children successfully, the supporters of Proposition 8 failed to produce any compelling evidence that same-sex couples were less equipped than were opposite-sex couples.

Opponents of marriage equality insist that marriage must be between a man and a woman because this is the sole union appropriate for raising children -- and that children are the reason "government licenses marriage." By that reasoning, any opposite-sex marriages couplings not capable of biological production of children should be barred.

Advocates of the ban on gay marriage need the debate about the issue to remain on the plane of vaguely defined fears and "threats to society." On the merits, they know that there is no credible basis to argue that any harm would befall actual marriages or communities were same-sex couples given the right to marry legally. Instead, on the basis of unfounded fears, those pushing for passage of Amendment 1 are willing to harm existing families in order to enshrine in the state constitution their especially restrictive view of what family means.

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