Competing Analyses of Marriage Amendment

Special Report - February 21, 2012

Pro-marriage advocates are responding to a recent analysis of the potential effects of the North Carolina Marriage Protection Amendment by its opponents. The Marriage Protection Amendment will be considered by voters at the May 8, 2012 primary. Voters will be asked whether they wish to add the following amendment to the State Constitution: “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.”

Three law professors from UNC Chapel Hill, Maxine Eichner, Barbara Fedders, and Holning Lau, issued a 27-page analysis in opposition to the amendment, in November 2011. A summary of that analysis, entitled, “What You Should Know About the Legal Effects Of Amendment One” was released February 3, 2012. That summary states, “The Amendment bans much more than same-sex marriage.” It also posits that the term “domestic legal union” “is vague and untested,” so it is unknown “how broadly the courts will interpret the Amendment’s prohibitions.”

The summary outlines several alleged possible effects of the Marriage Protection Amendment, according to its opponents, including:

  • The Amendment would prohibit North Carolina from approving “civil unions in the future.” (True.)
  • Unmarried couples would not be able “to enter domestic partnerships” in order to retain additional rights. (True.)
  • “Local governments could no longer offer domestic partner insurance benefits to their employees,” as is currently done in Chapel Hill, Durham, Greensboro, and Mecklenburg and Orange Counties. (True but private company employees could continue to do so, and local governments could offer benefits through other means not based on domestic relationships.)
  • The Amendment could affect “unmarried couples and their families” in relation to child custody, parenting, domestic violence, stalking, emergency medical decisions, and hospital visitation. (False.)

Rep. Paul “Skip” Stam (R­–Wake), who serves as the majority leader in the North Carolina State House, issued a legal analysis of the Marriage Protection Amendment on February 7, 2012. His analysis includes a discussion of the “concrete and clear” meaning of a “legal union” “in the context of family relationships.” He cites federal law’s “consistent” and “long-standing definition” of marriage as the “Legal union of one man and one woman as husband and wife.” “The word ‘domestic’ was added to the words ‘legal union’ to clarify that other legal arrangements, such as business partnerships, would not be affected by this amendment,” writes Rep. Stam.

Rep. Stam’s analysis also states that state and local governments “could still extend employment benefits that impact or benefit non-married domestic households,” as long as “The extension of such benefits [is not] predicated only upon the status of a domestic relationship other than marriage.” While acknowledging that “The Amendment would prohibit the government from forcing a company to provide [benefits to unmarried partners of employees],” Rep. Stam points out, “The second sentence of the Amendment makes clear that the Amendment would not prohibit private companies from entering into private contracts based on relationships chosen by the company,” including “domestic partnership or civil union benefits to an employee’s same sex or opposite sex partner.”

The analysis by Rep. Stam goes on to refute claims that the Marriage Protection Amendment would “adversely affect North Carolina’s economy, … Affect the Enforcement of Domestic Violence Laws,” discriminate “Against Homosexuals Wanting to Marry,” nullify homosexual partners’ “Medical Powers of Attorney (MPOAs), Wills and Trusts,” or “Determine the Custody and Visitation Rights of Unmarried Parents.”

Rep. Stam concludes that the “real threat to the institution of marriage” is the “tortured judicial reasoning” of courts, like those in Massachusetts and Iowa, that “have used the state constitutions to reverse the very pro marriage policies that were in effect when the state constitution was adopted” and implement same-sex “marriage” in those states. He cites a lawsuit “filed by the Register of Deeds of Guilford County in December challenging our state’s marriage laws and asking the Court to declare them unconstitutional because they don’t allow same-sex partners to ‘marry’” as evidence of the same threat to North Carolina’s marriage laws without the passage of the Marriage Protection Amendment on May 8, 2012.

For more information on what the Marriage Protection Amendment does and does not do, including expanded responses to the claims by its opponents, see “Responding to Marriage Critics” from the Winter 2012 issue of Family North Carolina.

Related Resources:
Marriage Resources Page
NJ Gov. Vetoes Marriage Redefinition Bill - February 20, 2012
Marriage Battle in WA State Not Over - February 16, 2012
Orange County Opposes Marriage Amendment - January 27, 2012
Faith Leaders Affirm Traditional Marriage - January 20, 2012
Raleigh Opposes Marriage Amendment - December 7, 2011
Polls Find NC Supports Marriage - October 14, 2011
Governor Opposes Marriage Amendment - October 11, 2011
Likely Voters Support the Marriage Amendment - October 6, 2011
Same-Sex Couples Seek Marriage Licenses - October 4, 2011
Marriage Debate Heats Up - September 22, 2011
Marriage Amendment Goes to Voters - September 14, 2011

Copyright © 2012. North Carolina Family Policy Council. All rights reserved.

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