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Same sex marriage (SSM) & civil unions in North Carolina

Current status. Attempts to amend the
state constitution during 2004, 2006, & 2012

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Current status of SSM in North Carolina:

North Carolina is a relatively conservative state and thus does not yet allow loving, committed couples to marry if they are of the same gender. There is essentially zero chance that the state legislature would willingly legalize SSM or even introduce civil unions anytime soon. However, the state is vulnerable to a potential lawsuit by one or more same-sex couples who might mount a challenge to the constitutionality of the existing state marriage law. That legislation currently defines marriage as a union of one man and one woman:

[T]he consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:

  1. a. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and

    b. With the consequent declaration by the minister or magistrate that the persons are husband and wife. ..." 1

In 1996, a state Defense of Marriage Act (DOMA) was signed into law as a secondary defense against SSM. It states:

"Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina." 2

Both laws -- the marriage act and the state DOMA act -- appear to conflict with some or all of the following three sections of the state Constitution, namely:

  • Article I, § 01 which guarantees the equality and rights of individuals.

  • Article I, § 18 which is "based on the Magna Carta and provides a right for every individual ... to ensure  ... equal justice..."

  • Article I, § 19 which guarantees equal protection under law. 3

A state Constitution amendment takes priority over any state legislation. Thus, if the Supreme Court of North Carolina determined that a conflict existed, the marriage laws and state DOMA law could be found to be unconstitutional. The Court might then order the Legislature to create a system of same-sex marriages or civil unions for North Carolina. Although the Court would simply be following the Constitution, religious and social conservatives would probably heavily criticized them for being "activist judges" who are "legislating from the bench" by if the Court found these laws unconstitutional.

In addition, both the marriage act and DOMA legislation might be found in violation of the U.S. Constitution's "full faith and credit" clause, and thus be found unconstitutional. This clause requires states to recognize certain types of actions by other states. Finally, these state laws may be found to be unconstitutional because of the equal process and protection guarantees in the U.S. Constitution.

One method of preventing the legalization of SSM through state courts would be to change the state constitution to define marriage as a union of a woman and a man, and thus specifically exclude same-sex couples. Then, the ban on SSM would be beyond the reach of the Supreme Court of North Carolina to declare unconstitutional.

However, there is no way to assure permanent marital equality for loving, committed same-sex couples because laws can be repealed and constitutions can be amended at any time. There is a major generational conflict in North Carolina as in the rest of the U.S. Young voters are solidly in favor of same-sex marriage; elderly voters are solidly opposed. As time progresses, more young people reach voting age, and more elderly voters leave the voting pool by reasons of illness, disability or death. Thus if a consitutional amendment is passed in 2012 that prohibits SSM, it would probably be appealed with a decade or two.

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2004 to 2006: Attempts to amend the state Constitution:

A constitutional amendment to ban SSM in North Carolina was introduced into the state Senate on 2004-MAY-12, only a few days before the state of Massachusetts started to issue marriage licenses to same-sex couples. Massachusetts was the first state to do so in the U.S.

Senator Jim Forrester (R-Gaston) introduced SB 1057—Defense of Marriage in the state Senate with 14 cosponsors. Later in the month, Representatives Tim Moore (R-Cleveland), Jim Crawford (D-Granville), Michael Gorman (R-Craven) and Dewey Hill (D-Columbus) introduced an identical bill, HB 1606, in the state House with 63 cosponsors.

The bill would have amended Article 14 of the state constitution to include a section reading:

"Marriage is the union of one man and one woman at one time. This is the only marriage that shall be recognized as valid in this State. The uniting of two persons of the same sex or the uniting of more than two persons of any sex in a marriage, civil union, domestic partnership, or other similar relationship within or outside of this State shall not be valid or recognized in this State. This Constitution shall not be construed to require that marital status or the rights, privileges, benefits, or other legal incidents of marriage be conferred upon unmarried individuals or groups." 4

In order to amend the state Constitution, the bill must pass both houses of the legislature with a 60% super-majority, and then be ratified by a minimum of 50% of the voters plus one voter in a referendum. However, the 2004 bill became stuck in a House and a Senate committee and did not proceed. A second and third attempt was made in 2005 and 2006. Again, the bill was stuck in committees and was never passed on to the full House and Senate for a vote. 4

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2011 & 2002: Latest attempt to pass an anti-SSM/anti-civil union constitutional amendment:

According to TheTimesNews.com:

"House Republican leaders on Tuesday [2011-AUG-30] pushed a proposed state constitutional ban on same-sex marriages. They hope such a ban will pass out of the General Assembly next month and be on the ballot for ratification [on election day] in November 2012.

'Does the decision about defining marriage in North Carolina belong in this building or does it belong to the people of North Carolina, for them to decide?' House Speaker Dale Folwell, (R-Forsyth), asked rhetorically during a press conference held in the Legislative Building.

Folwell was joined by the House majority leader, Rep. Paul 'Skip' Stam, (R-Wake). Stam said that enforcing the current statutory same-sex marriage ban has become a practical problem, with jurisdictions such as the states of Iowa and New York State and the District of Columbia legalizing same-sex unions.

'And when the president of the United States ordered the attorney general of the United States not to defend the [constitutionality of the] federal Defense of Marriage Act, we need to do what we can to defend our own statute,' Stam said."  5

As of 2011-AUG, the federal DOMA law has been ruled unconstitutional by two federal courts in opposite ends of the country. The Obama administration has determined that the law is clearly unconstitutional and refuses to defend the law against constitutional challenges. Another ten or so court challenges remain to be ruled upon.

The Advocate.com web site -- a national pro-lesbian, gay, bisexual, transgender (LGBT) group -- reported that a reporter at the press conference asked whether the amendment represented intrusion by the state government into people's lives, Stam replied:

"Well 90 percent of all laws affect people's lives, so that's an argument without any content to it. We prohibit adult incest, we prohibit polygamy. What would be their answer to that? We're involved in people's lives. That's a slogan without analysis. ... What I'm saying is, you cannot construct an argument for same sex-marriage that would not also justify philosophically the legalization of polygamy and adult incest."  6

Skip might have looked at Canada for legislation that legalizes same-sex marriage while prohibiting both polygamy and incest. By simply defining marriage as the union of two persons, then opposite-sex marriage and same-sex marriage are legallzed while polygamy -- both polygyny and polyandry -- are prohibited. Banning of polygamy can be defended because of its associated abuse, as was determined in 2011-NOV by the British Colubmia Supreme Court. By banning marriage between persons who are too closely related genetically, incest is prohibited. Banning of incestuous relationships can be defended because of the danger of genetic defects in the couple's children.

North Carolina Democratic Party chairperson, David Parker, said:

"The reality is that this amendment will not put one person back to work; it will not help one small business keep its doors open, and it will not assist one single citizen now trying to recover from the devastation inflicted by Hurricane Irene. The Republicans in the General Assembly have made it clear that their intention is to turn back the clock on our economy by pushing divisive social issues. Talk about misplaced priorities. This amendment will only stifle job creation and hinder our economic recovery."  6

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. N.C. Gen. Stat. § 51-1 (2008).
  2. N.C. Gen. Stat. § 51-1.2 (2008).
  3. Jabeen Ahmad, "Civil Right to Counsel in North Carolina," 2009-AUG-03, at: http://www.law.unc.edu/ This is a PDF file.
  4. Alysse ElHage, "Saying 'I don't' to marriage: Is North Carolina turning it's [sic] back on marriage?," North Carolina Family Policy Council, 2006-SEP, at: http://www.ncfpc.org/  This is a PDF file.
  5. Barry Smith, "GOP talks up marriage amendment," Freedom Communications, 2011-AUG-30, at: http://www.thetimesnews.com/
  6. Julie Bolcer, "North Carolina House Leaders Call for Marriage Amendment," The Advocate, 2011-OCT-31, at: http://www.advocate.com/

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First posted: 2011-AUG-31
Latest update: 2012-MAY-08

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