Sec. 6. Marriage.
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.
For starters, I should note that I originally supported California Proposition 22 in 2000, along with the identically worded Proposition 8 in 2008, even while opposing Virginia’s broader amendment in 2006, and plan to vote against North Carolina’s on Tuesday. Here’s why.
First, my own views on the subject have shifted over the years. While married, and not anticipating divorce, I used to be for traditional marriage, but neutral on domestic partners and civil unions. The rationale was something about babies vs. bathwater: why compromise the genius of millennia of Anglo-Saxon over a a social experiment the gays themselves didn’t even want more than a generation ago? My error was assuming family law was at least almost as sensible as the areas of law in which I practice. One divorce later, I now know nothing could be further from the truth. That bathwater is way nastier than I ever imagined it was, so nasty I can safely assume that if there ever was a baby in there to begin with, there certainly isn’t one now. Further, many of the aspects of family law I find so distasteful are the product of a bygone era in which men provided for women, who in turn were unable to provide for themselves. Many social conservatives won’t attack that inequity because deep down inside, they still long for the old world order upon which it is based. Feminists won’t attack it either, because however unfeminist its origins, its effect in the modern world is to systematically favor women. I can think of few better ways to expose family law for the farce that it is, than a few high-profile divorces among gay couples, where the “woman” claiming lifetime alimony is another man! If that’s the catalyst we need to prompt the reforms that were long overdue anyway, so be it.
Second, I continue to believe strongly that legal marriage ought to be defined by legislatures, not the Constitution or the courts. All three marriage amendments stripped courts and legislatures alike of the power to legislate. I didn’t much care about that with Prop 22, as California’s voter initiative law allows voters to easily reverse themselves anytime they want, just as a legislature could. Nor did I object to Prop 8 as a constitutional amendment, as the California Supreme Court had left voters with no choice but to make this a constitutional issue. Not so Virginia or North Carolina, both of whose amendments require(d) only a simple majority on election day, but would require a much more grueling political process to be repealed or amended later.
Third, while Amendment One is sold as a protection against runaway courts, its language, like that of so many other marriage amendments, goes much further than that. If real concern was to prevent judicial meddling, this is all we would have needed:
Sec. 6. Marriage
Nothing in this Constitution shall be construed to require this State to recognize any domestic union other than a marriage between one man and one woman.
Instead, we’re offered a much broader initiative, which bars not only courts but the General Assembly itself from either broadening the definition of marriage or crafting any potential marriage substitutes in the future. Bad idea.
Fourth, I’m not aware of NC courts taking the activist approach that is typical of liberal states like CA or MA, and thus find concerns about judicial activism overblown. Bear in mind that as a state constitutional amendment, Amendment One can’t do anything about federal courts, or even its own NC courts while interpreting federal laws. Could a court rule that “[n]o person shall be denied the equal protection of the laws” (NC Const. Art. I, Sec. 19) guarantees a right to gay marriage while “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. Amend. 14 Sec. 1) does not? Stranger things have happened, I suppose, but now that courts are finally weighing in on what (if anything) the Fourteenth Amendment has to say about gay marriage, I think that position is becoming increasingly untenable. Yet that is the only position under which Amendment One will do anything for traditional marriage at all. If both provisions are held to require gay marriage, the federal Constitution wins and Amendment One won’t do anything. If neither is construed that way, we didn’t need Amendment One to begin with.
Lastly, while I think I have offered some pretty good arguments for voting against Amendment One, I’d be remiss if I didn’t identify some very bad ones as well. Contrary to what you have seen in the ads, Amendment One will not make it legal to beat up your girlfriend, skip out on child support, or affect your rights as a parent in any way. These laws do not depend on marriage now, nor any other “legal domestic union” that does not even exist now. They won’t start depending on it on Wednesday. No, it won’t affect your ability to privately contract for any marriage like benefits you may desire; the second sentence of the amendment expressly preserves that right. No, it won’t take away your domestic partnership benefits if you are employed by anyone but the government. There is a real concern that it might cause problems for government employers and employees, an issue likely to end up in the courts sooner rather than later. My guess is that domestic partner benefits will remain a viable option for any employer, including government acting as a market participant, but it is just that, a guess, and certainly not a slam dunk. Worst cause (plausible) scenario: government employers have to find some way to get a little creative, e.g., offer health benefits to all persons who happen to be living in a particularly household, whether they are in a domestic relationship or not.
UPDATE: William Teach has more.