The North Carolina Legislature recently passed a constitutional amendment to codify the state’s existing ban on same-sex marriage, but the exact language of the question which has always been a source of concern appears even more restrictive than what the Republican leadership had said would be put before voters.
Indeed, this version of the constitutional amendment would appear to ban not just same-sex marriage and civil unions but also domestic partnerships regardless of sexual orientation.
Amendment 1 that will appear on the May 8 primary ballot asks voters to decide for or against a constitutional amendment “to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.”
The ballot question’s second sentence was supposed to add that the amendment doesn’t prohibit businesses from offering benefits to domestic partners so the question would have read:
“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.”
Several legal commentators expressed concern that even this version of the amendment was too open ended. With the ballot question now stripped of its second sentence it appears the amendment has become even more overreaching and potentially harmful, though the GOP leadership disagrees.
House Republican Leader Paul “Skip” Stam, a leading architect of the amendment, said it won’t make a difference. “The sentence is not even strictly necessary because that’s the effect of the first sentence anyway,” he said.
Michael Gerhardt, a constitutional law expert at UNC-Chapel Hill, said it’s not just semantics. It opens the amendment to further legal challenge and interpretation by the courts – and the courts would likely favor what appeared on the ballot, he said.
Ten Democrats voted with nearly all House Republicans to pass the amendment in a 75-42 vote. The Senate vote came down to a 30-16 majority, over the three fifths needed to send the question to the voters in a May 8, 2012, referendum.
Democrats who voted for the amendment have now said that they did not notice the difference in the question until a few days after the vote, perhaps indicating (though too little too late now) that they might have voted differently.
Democratic Gov. Bev Perdue is said to have expressed disappointment that the Legislature is “wasting time” with the marriage amendment, however the governor is not capable of vetoing this measure due to the procedural rules surrounding constitutional amendments.
This comes after House Majority Leader Paul Stam. R-Wake, and Minority Whip Rick Glazier, D-Cumberland, participated in a debate on the amendment question at the University of North Carolina law school in Chapel Hill this week.
Stam provoked condemnation from LGBT rights advocates when he said the amendment was about protecting child welfare and that it is necessary to have limits on marriage in order to keep the integrity of the institution. You can hear a video of his comments here. Stam, prior to the debate, also likened gay marriage to allowing incest and bestiality.
The North Carolina GOP has already been criticized for the way in which it pushed this amendment through the Legislature. This latest controversy will do little to dissuade that the Republican leadership is being underhanded in how it approaches codifying the state’s ban on same-sex marriage — a move that a majority of North Carolina’s voters have indicated that they reject.