House Republicans in North Carolina on Monday passed a constitutional amendment that, if approved by voters, would codify a ban on same-sex marriage in the state. That the Republican leadership then did not allow for public comment or expert testimony on the ban has angered many.
Ten Democrats voted with nearly all House Republicans to pass the amendment in a 75-42 vote — above the three fifths needed to advance the measure. The amendment now goes before the senate where the same margin is needed to pass the legislation.
The amendment was moved at lightning speed, having first been approved by a House committee on a voice vote earlier the same day. The Republican leadership contended that a public debate wasn’t necessary because the issue will be going before voters anyway. Opposed Democratic legislators thought this showed underhanded tactics from the GOP leadership.
House Majority Leader Rep. Paul Stam, a Republican, told committee members he felt it was imperative they move to adopt the amendment.
“Things have changed in Iowa, California, New York, D.C. and Massachusetts,” Stam said. “We have now states with significant populations that are allowing same-sex marriages to be legitimized and entered into. The question then becomes, what happens when they come to North Carolina seeking divorce or equitable distribution?”
North Carolina Rep. Paul Luebke, a Democrat, said while he understood that Republicans want to move on the issue, he felt it was “reprehensible,” given such a high level of public interest, that the public would not have the chance to comment.
“Whether you (are) for this amendment or against it, it is a travesty we are not debating the measure” properly, Luebke said.
Luebke added that by pushing the proposed amendment along without the right process, the Legislature was wrongly moving to “specifically prohibit one group of citizens” without letting them have a say.
On the other hand, Rep. Charles Graham (D-Robeson) said he was happy with his “yes” vote because, he contended, he had to listen to the will of his constituents.
While North Carolina residents overwhelmingly support keeping their statutory ban on same-sex marriage, a new poll by Public Polling Policy (PPP) says that a majority would reject a constitutional amendment enshrining the state’s gay marriage ban if it also blocks same-sex couples from all legal recognition. Read more on that here.
Next Page: Law Professor on How the Amendment Could Invalidate Domestic Violence Protections, Harm Other Existing Laws
The language to be considered by voters has been the subject of great interest because it appears to invalidate all forms of same-sex partnerships, not just same-sex marriages. The text reads:
“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.”
Legal commentators have said that this language, already amended by GOP leaders once, is dangerous and may have a far reaching and destabilizing effect on many of the state’s wider partnership and child custody laws.
Ahead of the vote, UNC Law Professor Maxine Eichner sent an email to all 170 state legislators voicing her concerns over the amendment’s impact, saying:
…The proposed Amendment’s scope is still unclear, potentially far reaching, and has the possible result of unsettling the rights of committed but unmarried couples in a number of legal areas. It could take years of litigation for courts to resolve these issues.
The revised language only limits broad readings of the original sentence’s vague and untested language that pertain to private contracts. It does nothing to preclude the possibility that courts will read that language to invalidate other rights and obligations connected with the relationships of unmarried partners that do not involve contracts. For example:
The Amendment still has the potential to invalidate domestic violence protections for members of unmarried couples, as an Ohio court did with even narrower language in its state’s marriage amendment.
The Amendment could still interfere with existing child custody and visitation rights that seek to protect the best interests of children.
The revision does not preclude courts from reading that language to invalidate trusts, wills, and end-of-life directives – which are not “private contracts” – in favor of an unmarried partner.
Further, the revision would still invalidate domestic partner benefits now offered by several municipalities.
The referendum would be held May 8 2012.
The Senate is set to take up the legislation Tuesday.
UPDATE: The NC Senate approved the measure Tuesday and the constitutional amendment now heads to the ballot May, 2012. Read more here.