Q&A on Amendment One details

Published 12:00 am Saturday, April 21, 2012

By Karissa Minn
SALISBURY — According to Public Policy Polling, 34 percent of likely primary voters in North Carolina aren’t sure what Amendment One does.
The main text is only two sentences long, but it has raised a lot of questions. Here are some facts and legal predictions that answer some of the most common ones.
What does the full amendment say?
“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.”
Voters will be asked if they are “for” or “against” it on the May 8 primary ballot.
What will happen if the amendment fails?
Same-sex marriage will remain illegal under a 1996 North Carolina law. Civil unions still will not be offered to either same-sex or opposite-sex couples, but the state could pass a law to allow them.
There will be no constitutional ban on either gay marriage or civil unions, meaning a state court could one day strike down existing law as unconstitutional.
What will happen if the amendment passes?
It will be added to the state Constitution, meaning a three-fifths majority of state legislators would have to agree to repeal it.
The amendment would prohibit both same-sex marriage and civil unions, or legal unions with equivalent rights to marriage.
How would it affect unmarried couples who live together?
Legal experts disagree, because it would be up to the courts to interpret the amendment.
Holning Lau and Maxine Eichner, law professors at UNC Chapel Hill, say private businesses could still provide domestic partner insurance benefits to employees, but local and state governments could not.
They also say North Carolina couldn’t grant domestic partnership protections in the future.
The courts could decide that the state can’t recognize rights based on unmarried couple relationships, Lau said, including:
• Domestic violence and stalking protections.
• Child custody and parenting protections.
Lau said the amendment also could prevent the state from adding protections for unmarried partners, including rights to:
• Make emergency medical decisions for their partner.
• Visit their partner in the hospital.
• Decide what happens to their partner’s remains.
But Campbell law professors Lynn Buzzard, William Woodruff, and Gregory Wallace say these predictions won’t happen.
“The proposed amendment … would allow legal benefits for unmarried opposite-sex or same-sex couples, so long as those couples are not treated as having a legal status resembling marriage,” they said in a Wednesday press release.
The Campbell professors say people don’t have to be married or in a “marital-like union” to be protected by domestic violence laws in North Carolina. They can be household members, couples who live together or even dating couples.
When a similar amendment was passed in Ohio, some judges dropped domestic violence charges because the couples involved were not married. But after three years, the Ohio Supreme Court ruled that the state’s domestic violence laws still apply to unmarried people.
The Ohio measure bans the state from recognizing relationships that “approximate” marriage, not just “domestic legal unions” as North Carolina’s amendment says. Lau said that could be a problem.
“There’s a good possibility that our Supreme Court wouldn’t be able to read our amendment as narrowly,” he said. “They might decide the state of North Carolina can no longer recognize cohabitating couple relationships for the purpose of domestic violence laws.”
Contact reporter Karissa Minn at 704-797-4222.
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