The Amendment: Just the Facts

Now that the NC General Assembly has finished passing the Does-Nothing-About-Divorce Amendment, it's time to look at the text of the bill and discover the truth about the law.

First, it's been reported that the amendment will be on a ballot in May. It ain't necessarily so. Take a look at the text of the bill. It reads:

The amendment set out in Section 1 of this act shall be submitted to the qualified voters of the State at a statewide election to be held on the date of the first primary in 2012, which election shall be conducted under the laws then governing elections in the State

As we all know, the NC General Assembly has been trying to change elections law this entire session. The latest proposed adjournment resolution continues to allow for possible changes in election law when the General Assembly returns. Of course, this doesn't begin to consider possible election delays caused by redistricting matters.

The final amendment ballot date is not yet set and should not be reported as such.

Second, the amendment will ban more than just gay marriage.
1) The amendment is designed to ban civil unions.
2) The amendment is designed to strip benefits from local first responders and
other municipal employees that already have been given those benefits by their
local governments.
3) The amendment is designed to prevent anything that is not a "private party" from
offering benefits to non-married individuals (bereavement leave, health
insurance, etc.)

Again, let's look at the text of the bill.

"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."

It's clear that the first sentence targets civil unions. If that wasn't the case, then why not use the language in the original House marriage amendment, House Bill 777 (link)
Here's the more narrow version of an amendment that the legislature left on the table.

"Sec. 6. Marriage. Marriage is the union of one man and one woman at one time. No other relationship shall be recognized as a valid marriage by the State.

The use of the language in Senate Bill 514 rather than the language in House Bill 777 clearly demonstrates that this amendment targets much more than just marriage.

If someone says they support equal rights for gay folks but just not marriage, then they should logically oppose the amendment now heading to the ballot.

Lastly (for now), let's look at that second sentence added to the amendment supposedly to make it less extreme. As Rep. Hackney tried to point out during the debate in the House Rules Committee, the words "private party" on lines 10, 11, and 12 of the amendment are not defined.

Who knows what some future court will consider a "private party"?

Who is willing to find out?

As noted above, the inclusion of that second sentence explicitly targets non-private parties. If the amendment passes, we will get to have some court cases to determine what those "non-private parties" are. Not just local governments, but perhaps the NC Biotech Center, perhaps hospitals, perhaps any group that gets an appropriation from the state or a local government... who knows?

Anyone valuing legal certainty in North Carolina should logically oppose the version of the amendment now heading to the ballot.

There is much more that can be written -- and will be written -- about this amendment in the future. It just seems that there needed to be some examination of the text of an amendment to the state constitution.

This constitutional amendment text -- and the larger bill, esp. the ballot date -- certainly didn't receive a serious examination at the legislature.

Comments

At will V. contract

Another observation was made about "contracts". As a "right to work" state, most private sector workers in NC are employed "at will" and do not have a contracts with their employers. So the provision about contracts between private parties has very narrow application.

Senate Bill 514 vs. House Bill 777

Another reason that the amendment now on the ballot goes far beyond marriage.

The language in House Bill 777 (the original House marriage amendment) did not have this "private party" and "contract" wording.

The House instead decided to put language never seen before -- as Rep. Stam admitted in committee -- into Senate Bill 514 (link).

Now we all get to wonder if even straight at-will employees at multi-national corporations in North Carolina will have their benefits challenged.

I'm reminded of what Senator Brunstetter said about the eminent domain amendment a few days ago to WRAL:

"If you put this into the Constitution, you want to make sure you know what you're doing," he [Brunstetter] said.

I wish Brunstetter would have followed his own advice.

Brunstetter says he's concerned the removal of "public benefit" could have unintended implications, particularly for certain infrastructure projects built by private interests for the public good, like utility lines or toll roads.

It's interesting how the language of the eminent domain amendment so troubled the Senate that the body needs to look over the eminent domain language for months, yet the Senate was perfectly happy to approve constitutional language first revealed in the House Rules committee barely 24 hours before.