Recent polls show that the people of North Carolina favor allowing same-sex unions. Yet the numbers also indicate that on May 8, voters are likely to approve a state constitutional amendment that would prohibit such unions.
What, exactly, is Amendment One? What would it do? Why is it coming before North Carolina voters now? And why, despite public opinion opposing its effect, does it seem likely to pass?
Backers of the amendment say it is needed for the “protection of marriage” and would align our state with 30 others whose constitutions define marriage as a legal union between a man and a woman.
In fact, the amendment would do much more. In addition to defining marriage, it would forbid the state’s legislators and judges to recognize — in any way — any form of domestic legal union other than traditional marriage. That prohibition would apply not only to same-sex couples but also to unmarried male-female couples, who make up some 90 percent of the 222,000 unmarried households the 2010 Census found in our state.
The radical ban would go farther than the constitutional marriage provisions in all but three states. It even goes too far for some conservatives.
U.S. Rep. Renee Ellmers, a Republican from Dunn with libertarian leanings and strong Tea Party support, opposes it because she sees no reason to ban civil unions. John Hood, president of the conservative John Locke Foundation in Raleigh, wrote that amending the constitution “to forbid gay and lesbian couples from receiving any future legal recognition, including civil unions, is unwise and unfair.” Robert Orr, a Republican former justice of the N.C. Supreme Court, said “it’s probably not a provision that ought to be in” the constitution. And Richard Vinroot, the former Charlotte mayor who was the Republicans’ candidate for governor in 2000, said it is “unnecessary and may have serious unintended consequences.”
What it means
North Carolina law already defines marriage as a legal union between a man and a woman. If the amendment fails, same-sex marriage still won’t be legal. But a legislative majority can change laws, and judges can overturn them. That’s why advocates say amending the constitution would keep traditional marriage safe from so-called activist judges and reform-minded legislators. Changing the constitution isn’t easy: It requires support by three-fifths of the state House and Senate and approval by voters.
But does North Carolina really need a stronger constitutional protection than Mississippi, for example, whose constitution defines marriage as being between a man and a woman and stops at that?
Yes, according to Republican Rep. Paul Stam, a Raleigh lawyer and co-author of the proposal. He said North Carolina has learned from “failures” in other states, like California, where the state legislature authorized a same-sex union, called a domestic partnership, that granted the same rights as marriage in 1999.
Amendment One would prohibit cities and counties from granting employee benefits to same-sex and unmarried male-female partners. It would block any future legislature from giving such couples some or all the rights granted automatically to married couples in matters such as inheritance, child custody, property ownership and health-care decision-making.
Maxine Eichner, a specialist in family law at the UNC Chapel Hill law school, worked with others there to publish a 27-page analysis of the amendment last year.
“It is impossible to predict definitively how broadly courts would interpret the Amendment’s prohibitions, given its vague and untested language,” they wrote. “However, two things are clear: First, it will take courts years of litigation to settle the Amendment’s meaning. Second, when the dust clears, unmarried couples will have fewer rights over their most important life decisions than they would have had otherwise.”
Apprehension about the amendment’s unintended impacts isn’t unreasonable. A marriage amendment in Ohio unexpectedly disrupted that state’s handling of domestic-violence cases in 2004. Defense attorneys argued that domestic-violence laws in effect since 1979 no longer applied to people who were in relationships but not married. Legal turmoil ensued as judges in different parts of the state interpreted the law differently. The UNC researchers found that courts ruled in favor of challenges to domestic-violence charges at least 27 times before the state Supreme Court ended the confusion by ruling that the amendment had not nullified domestic-violence laws.
Concerns over the way Amendment One could impact domestic-violence protections led the North Carolina Coalition Against Domestic Violence to oppose it, said Executive Director Beth Froehling, a lawyer.
Bill sponsor Stam said North Carolina’s domestic-violence law is broad enough to be unaffected by the amendment and dismissed other “hypotheticals” raised by opponents. If problems do arise, he said, the legislature can resolve them. And he cheerfully feigns offense at critics who complain about the amendment’s wording.
“It sort of hurts my feeling that people say it is poorly worded,” Stam said. “What they mean is it’s so clearly worded that it will do exactly what it says it will do.”
Why now?
The amendment is coming to the voters now for two reasons, one political, the other cultural.
Since the state law defining marriage was enacted in 1996, there has been no legislative effort to overturn it and no significant court action to challenge it. But its backers see the political terrain shifting. They say they see so-called activist judges in other states finding previously unnoticed support for same-sex unions in their constitutions. They want no such surprises here.
The amendment’s backers also see scattered tremors in this state that threaten the status quo.
Seven Tar Heel cities and counties — including Mecklenburg — have granted employee family benefits to same-sex couples. The Guilford County register of deeds and three ministers were among a group that sued the state in December, challenging the constitutionality of statutes that make the clergy act as involuntary agents of the government in performing weddings and deem it a crime for them to perform weddings for couples who don’t have a state license. They called for “disentanglement of the state from the personal and religious institution of marriage.” The state should be empowered, they said, only to prohibit marriage under certain circumstances, such as insanity, bigamy, polygamy and incest, and to prevent marriages as a result of “fraud, duress, joke or mistake.” A Superior Court judge dismissed the complaint in April, but it’s on appeal.
Eyeing such developments, Republican legislators tried for years to put a marriage amendment on the ballot, but Democrats, who had controlled the legislature for more than a century, blocked those efforts. Sen. Jim Forrester, a Gaston County Republican, said in a Senate speech last year that he had offered the amendment eight times, but it had been sent to die in the Senate Ways and Means Committee, chaired by Sen. Charlie Dannelly, a Mecklenburg Democrat. “The committee never met,” Forrester said, ruefully.
Then came the Republican landslide of 2010, giving the GOP control of the legislature for the first time since 1870. Republican priorities that had been bottled up for decades — including the marriage amendment — burst free. Gov. Beverly Perdue, a Democrat, vetoed many Republican measures, but a governor can’t veto a proposed constitutional amendment.
Forrester, a Gaston County physician and former Air Force general who died in October, had a singular devotion to the marriage amendment and a colorful — and infuriating — way of deriding his adversaries. He called Asheville, which he considered a center of gay culture, a “cesspool of sin,” a description that rankled city leaders and delighted Asheville’s T-shirt makers. He told a Raleigh GOP group that “slick city lawyers and homosexual lobbies and African-American lobbies are running Raleigh.” He later apologized.
Co-sponsor Dan Soucek, a Senate Republican from Watauga County, is a West Point graduate and former U.S. Army officer who worked with Samaritan’s Purse, the Rev. Franklin Graham’s international-relief and evangelical organization. Soucek speaks of marriage as a uniquely valuable social asset that deserves unique protection. The amendment “affirms the family,” he told Creative Loafing, “which is the most critical building block in our society.” Soucek believes state policy should support only traditional marriage, but he noted that the proposed amendment doesn’t prohibit unmarried couples from entering into private contracts that could guarantee some of the rights that state law automatically gives to married couples.
In fact, Cheri C. Patrick, a Durham lawyer whose work includes family matters for same-sex couples, said if the amendment is adopted, the chief beneficiaries may be the lawyers who draw up those contracts.
A shift in attitude
The problem facing advocates of traditional marriage is that the outcome of the amendment will have little effect on the real threat to marriage: the inclination of more and more people to not get married or to not stay married.
The 21st-century American family doesn’t look much like the Leave It to Beaver family portrait of a half-century ago. Today, some 26 percent of children under age 21 are being raised in single-parent households. Almost one child in 20 lives with a grandparent. In 1960, married couples accounted for 78 percent of U.S. households; in 2005, they accounted for just 49.8 percent. That was the first year they were in the minority.
Nor is marriage now the way most men and women begin their sexual lives. In the late 1960s, about 10 percent of U.S. couples lived together before marrying. Now, it’s 60 percent. In 2010, 42 percent of births in North Carolina were to unmarried mothers.
As Americans’ opinion of marriage was changing, so were their attitudes about same-sex relationships. When Congress passed the Defense of Marriage Act in 1996, homosexual acts were illegal in many states. A Gallup poll found that 68 percent of Americans opposed gay marriage. No state allowed any sort of same-sex legal union.
Today, seven states allow same-sex marriage. Openly gay men and women serve in the military. A Pew Research Center poll released in November showed 46 percent of Americans were in favor of same-sex marriage and 44 percent opposed it, with 9 percent undecided. In a Pew survey just five years earlier, 35 percent approved of it.
The same trend is evident in North Carolina. In April, Elon University reported a statewide survey that found 67 percent of North Carolinians favored allowing either gay marriage (38 percent) or civil unions (29 percent).
The impetus for the change is obvious. As more gays and lesbians have emerged from the closet, the public has had more opportunity to form its opinion based on real people, not negative stereotypes. Those real people may be neighbors, co-workers, family members or the stars of hit TV shows, movies and bands.
This year, J.C. Penney, the quintessential merchandiser to Middle America, hired as its advertising spokeswoman the comedian Ellen Degeneres, whose same-sex love life has been amply chronicled — and who, along with Michelle Obama, Oprah Winfrey and Sara Palin, was named one of the nation’s 10 Most Admired Women in 2011's USA Today/Gallup Poll. A final reason the amendment is on the ballot now is evident in the polls: demographic change.
Pew’s November poll found a striking generational divide on same-sex unions. Baby Boomers opposed same-sex marriage 48 percent to 42 percent, and their elders rejected it by an even larger margin, 55 percent to 33 percent. But members of Generation X (ages 31-46) favored same-sex marriage 50 percent to 42 percent, and Millennials (born after 1980) approved of it even more emphatically, 59 percent to 35 percent.
The same is true in this state. A January poll by Public Policy Polling of Raleigh found 63 percent of North Carolinians age 18-29 favor some form of gay union.
Thom Tillis, the speaker of the state House of Representatives, supports the amendment but thinks it would soon be swept away. Talking with students at N.C. State University in March, Tillis predicted voters will approve the amendment but predicted it would be repealed within 20 years. “It’s a generational issue,” he told them.
Paul Stam disagrees. He thinks as young people mature, their views on marriage and family will become more like his.
Why will the amendment pass?
Mark Kleinschmidt graduated from UNC Chapel Hill and then taught social studies at West Mecklenburg High School, where in 1997 he was named Teacher of the Year. He left teaching to attend UNC law school in 1997, worked as a defense attorney in death penalty cases and recently became the first lawyer in the Chapel Hill office of Tin Fulton Waker & Owen, a Charlotte firm.
Kleinschmidt is doubly motivated to oppose the amendment. He’s mayor of Chapel Hill, whose benefits program for same-sex and unmarried male-female partners would be terminated by the amendment. And he’s gay.
He told Creative Loafing that conservative legislators are using the amendment “as a mobilization tool to advance their own agenda and remain in power.”
Despite the polls, he feels cautiously optimistic. He said voters are beginning to understand that most of those affected by the amendment would not be same-sex couples but male-female partners who aren’t married — not only young couples but also elderly couples who live together but for family or financial reasons aren’t married.
Results of an Elon University Poll released in April showed that 61 percent of North Carolinians say they oppose an amendment that would prevent all same-sex marriages, domestic partnerships or civil unions. But a March statewide poll by WRAL, a television station in Raleigh, showed the amendment winning with 58 percent of the vote. Who’s wrong?
Maybe neither. The WRAL poll asked likely primary voters the question posed on the ballot. The Elon poll asked more general questions, and the people it polled weren’t just likely primary voters. The proposal is on the primary ballot as a result of a compromise with Democrats, who didn’t want it on the November ballot for fear it would attract more conservative voters.
But North Carolinians don’t vote in primaries. In 2008, the year of the last big presidential primary, only 37 percent of registered voters went to the polls, compared to 70 percent in that year’s general election.
A combination of lethargy and ignorance may produce an outcome on May 8 that most North Carolinians say they don’t want. In an election, the only opinions that count are those of the people who vote.
Ed Williams is a longtime Charlotte journalist.
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This article appears in Apr 24-30, 2012.
Great article, Ed. Well researched and thorough. I’d been wondering why this amendment showed up now, and in a primary election no less.
Boy, that last sentence really summed up the situation. “In an election, the only opinions that count are those of the people who vote.”
Vote, people, vote! Early one-stop voting is quick and easy.
and how?
What same-sex “marriage” has done to Massachusetts
http://www.massresistance.org/docs/marriag… (pdf)
Activist Paula Ettelbrick, once policy director for the National Center for L e s b i a n Rights, formerly legal director of the Lambda Legal Defense and Education Fund (formerly the Lambda Legal Defense Fund), is tactically “for” same-s e x “marriage,” but shares these caveats:
“Being q u e e r is more than setting up house, sleeping with a person of the same gender, and seeking state approval for doing so….Being q u e e r means pushing the parameters of s e x, s e x u a l i t y, and family, and in the process, transforming the very fabric of society….
As a l e s b i a n, I am fundamentally different from non-l e s b i a n women….In arguing for the right to legal marriage, l e s b i a n s and g a y men would be forced to claim that we are just like h e t e r o s e x u a l couples, have the same goals and purposes, and vow to structure our lives similarly….We must keep our eyes on the goals of providing true alternatives to marriage and of radically reordering society’s view of reality.”
Activist Donna Minkowitz says:
“We [g a y and l e s b i a n activists] have been on the defensive too long. It’s time to affirm that the Right is correct in some of its pronouncements about our movement. Pat Buchanan said there was a “cultural war” going on “for the soul of America” and that g a y and l e s b i a n rights were the principal battleground. He was right. Similarly, [h o m o]’phobes like Pat Robertson are right when they say that we threaten the family, male domination, and the Calvinist ethic of work and grimness that has paralyzed most Americans’ search for pleasure.
Indeed, instead of proclaiming our innocuousness, we ought to advertise our potential to change straight society in radical, beneficial ways. Het[ero s e x u a l]s have much to learn from us: first and foremost, the fact that pleasure is possible (and desirable) beyond the sanction of the state. Another fact gleaned from g a y experience-that gender is for all intents and purposes a fiction-also has the potential to revolutionize straight lives.”
Mr. Jon Smith: What you likely will never, ever understand is that it is your insane, obsessive linking and quoting that’s far more frightening than what you are actually linking and quoting. Most of the things you are linking and quoting make absolute sense. For instance, you seem to think it’s a bad thing that gays, lesbians, progressive activists and educators want schools to teach our children tolerance of differences. That is not a bad thing. That’s a good thing. Your ranting and your bigotry are bad things. That’s as clear as a fresh morning mountain spring — to most compassionate human beings.
I’m continually amazed that anti-gay, so-called “Christians” don’t get this, but then, I have yet to understand the sort of fear of homosexuality that drives their hatred. I can’t think of a better kind of “indoctrination” than the “indoctrinating” of our children to be more compassionate citizens. If you fear becoming homosexual or fear that your children will become homosexual, that is a psychological issue that you should personally deal with. If you personally believe homosexuality is wrong, that’s your business and your issue. But obsessively posting links and quotes will not win your any converts. It’s just scary. It makes you scary. Much scarier than the opinions of Donna Minkowitz or Michelangelo Signorile, whose strong positions are neither all that frightening nor are particularly representative of most LGBT civil and human rights activists.
What amuses me most is that pdf you linked, which attempts to paint a dark picture of what’s happening in Massachusetts schools. Most of it is either grossly exaggerated or not true at all, and some of it — like “Kindergartners were given picture books telling them that same-sex couples are just another kind of family, like their own parents” — looks more like good common sense.
So Jon, to you and those of you who are so frightened, I say: Boo!
Jon: Mass Resistance is a hate group. Posting links to it are like posting links to the Westboro Baptist Church. Even the Christians who are opposed to same-sex marriage can see the hate espoused by the groups and want to turn away from it.
I keep seeing posts from Christians claiming that non traditional families, be they heterosexual or homosexual, are seeking society’s approval. The fact is, it is Christians who think family units require society’s approval. The victims of this petty, discriminatory, amendment just want to be free to follow their own path. That is, after all, the American way.
Liberals cherish freedom, Conservatives cherish conformity.
the truth is same sex marriage is a sin a you will go to hell GOD does not approve it. And some are right the this amendment will hurt families it is not fair to the children or spouses, it needs to be picked apart and adjusted to today society where a man and woman who have a family together where the rules of benefits and life commits are taken care of. There are many states that honor the common law marriage, unfortunately NC is not one of them.
Paul Stam needs to be shut down he puts women, gays and minorities down way to much he doesnt show any professional respect to women in politics or of any authority he is a white,fat, arrogant man who has never worked a day in his life. Yet he judges all people and gets to make decisions for North Carolina residents.He is a fat republican that just shot down raises for teachers in 2012. He voted for amendment 1 and he feels women rights should not be given to women yet he takes a seat in the house. get that fat republican out and start demanding respect for all women and gays.
Honestly, the amendment wouldn’t affect my life all that much. Actually ,it would effect less than 10% of the American population.
Here’s some FACTS:
According to the 2000 Census 1% of American households are homosexual.
According the latest gallup poll, less than 10% of the population is homosexual.
The same gallup poll also showed that average person estimated the homosexual population to be 20%. (DOUBLE what it actually is, the idiot box/movies are working)
The current unemployment rate is right at 10%.
I don’t about you all, but I feel that unemployment, the economy, international policies, white collar crime, and corruption in congress are way MORE IMPORTANT issues to be tackling than this one. I mean our state is BROKE, do you all know that?
Our country is in a state of turmoil, and the LBGT community feels that this issue is of the utmost importance. Unfortunatly, there are more pressing things on the plate. Let’s revist when we aren’t broke or in a recession.
One more thing to Brian:
You say in your post, “If you fear becoming homosexual or fear that your children will become homosexual, that is a psychological issue that you should personally deal with.”
Would you say that this viewpoint is applicable to everyone? And if so, couldn’t it be argued that being gay and wanting people to understand your viewpoint is a psychological issue that you should personally deal with?
You also said, “For instance, you seem to think it’s a bad thing that gays, lesbians, progressive activists and educators want schools to teach our children tolerance of differences.”
Most of these people think that being gay is MORALLY wrong, since there’s no scientific discovery that says being gay is nature or nurture. With that said, if the schools were teaching other things that are morally wrong like stealing, lying, murder, etc. the same parents would be up in arms about that. If you have a child I’m sure you could empathize when explained that way.
These people are just doing what they feel is best for their kids, and you can’t fault EITHER side for that.