Jen Jones: Concerns about Amendment One

Jen Jones, director of communications for Equality North Carolina and an attorney, responds to a Feb. 17 oped piece by attorney Mary Blanton on the legal impact of a proposed state amendment to ban same-sex marriages.

During our “Race to the Ballot,” we send out a special thanks to Salisbury attorney Mary Blanton for raising important questions about the harms of Amendment One.

As the “interviewee” who posed these harms, I think it only fair to explain exactly why these harms — all of which Ms. Blanton calls “false” — do threaten protections for unmarried families, in Salisbury and beyond.

While Ms. Blanton argues that Amendment One’s broad restrictions on legally-recognized relationships other than marriage “has NO effect on domestic partnership benefits,” the eight North Carolina local governments that offer domestic-partner benefits all disagree. In an open letter to the General Assembly this fall, representatives from each municipality pointed out that, if approved, Amendment One would make it illegal for these same local governments to offer domestic-partnership benefits (including health benefits to public employees’ partners and children).

I think we can agree that’s not right.

Ms. Blanton also says Amendment One “would have no effect on (NC’s domestic violence) statutes whatsoever.” We agree state law currently provides a number of special provisions meant to provide extra protections for people in broadly defined relationships with abusers. But it doesn’t take a legal scholar to see that if Amendment One passes and the Constitution specifically says the state cannot recognize any “domestic legal union” beyond marriage, our government may choose not to extend anything extra (such as restraining orders) to someone based on a relationship other than marriage. In Ohio, for example, at least 27 domestic violence cases were either overturned or dropped in the three years before the state’s Supreme Court stepped in. In the Ohio scenario, the Cleveland Plain Dealer, a newspaper similar to this one, was left to look hindsight squarely in the eye, explaining, “Ohio voters who approved a constitutional amendment last fall that denied legal recognition of unmarried and gay couples probably didn’t envision the measure being successfully used as a defense in domestic violence cases.”

Is there a 100 percent chance the courts will say that domestic-violence protections will fall? Nope. But do we really want to take that chance with the lives of domestic violence victims?

I think we can agree that’s not right.

Ms. Blanton is also correct that “there is no restriction on citizens of this state from preparing health care powers of attorney, powers of attorney, living wills, wills or trusts.” In fact, a domestic partner in North Carolina MUST execute these same legal documents in order to have any chance of giving their partner hospital visitation privileges, medical decision-making powers or powers to direct their financial affairs. But we know few people who execute these documents prior to an unexpected medical crisis, and if Amendment One passed, courts or hospitals might refuse to enforce these directives even if they did exist.

A far-reaching interpretation of Amendment One could also make the same result possible for wills and trusts; at most, finding recognitions of an unmarried partner unconstitutional, at least, creating an atmosphere of uncertainty regarding wills and trusts entered into by members of unmarried couples, resulting in these agreements being challenged in court. Do we really want to punish innocent North Carolinians at the worst possible time in their lives?

I think we can agree that’s not right.

Finally, Ms. Blanton argues that “There is nothing in present North Carolina statutes that restricts custody or visitation rights to married parents.” That’s all well and good. But married people aren’t the only ones raising children in North Carolina. I can’t tell you how many mothers I’ve spoken to on “Race to the Ballot” who have since split with their partners and are fighting for the rights to have joint custody or visitation of a child they’ve raised all of their life. Amendment One could further disrupt North Carolina law that establishes when an unmarried partner who has acted in a parenting role can retain a relationship with their child and give them no basis to see a child they’ve raised all his or her life.

I think we can agree that’s not right.

I’m also a licensed attorney in North Carolina. And while attorneys like Ms. Blanton and I may disagree about the harms of Amendment One, it’s important to note that when attorneys disagree on anything, it inevitably leads to one thing: costly litigation that will impact the lives of people we all know and love who will have fewer rights over their most important life decisions as a result.

And that’s not right. Can’t we agree?