The unintended consequences of Amendment One

Today, voters in North Carolina will decide whether the state constitution should be amended to ban same-sex marriage.  However, Patrick at Popehat explains that the amendment as worded goes farther.  Much, much farther:

Despite the existing statutory definition of marriage as between a “male and female person”, a number of same sex (and opposite sex) couples have done everything they can to create a relationship which gives them, to the extent possible, the benefits of marriage.  I will interview such a couple later in this series of posts.

This is done through wills, grants of power of attorney for health care and financial decisionmaking, and, where employers offer it, declarations of domestic partner status granting access to employer-provided health and insurance.  A number of local governments in this State offer such benefits to declared domestic partners of their employees, including the County in which I reside.  If the Amendment passes, these benefits will become unlawful immediately.

This is because the Amendment goes much further than existing law.  It states that the only “domestic legal union” that shall be “valid or recognized” in North Carolina is an opposite sex marriage.  The term, “domestic legal union” is not defined, but it surely includes within its sweep the arrangement discussed above.  Such unions will not be “recognized” (meaning to have their existence acknowledged) by any court.

This means that, for domestic partners of employees of Carrboro, Chapel Hill, Durham County, the city of Durham, Greensboro, Mecklenburg County, and Orange County, a list that includes two of the State’s five largest counties, and two of its five largest cities, all such benefits will end immediately.  They may also end, or become much more difficult to enforce, for domestic partners of private employers, many of which offer such benefits as an employee recruitment tool.


North Carolina, like every other State, gives social workers and courts the power to remove a child from a household when it is deemed to be “in the best interests of the child”.  While it is biologically impossible for same sex couples to produce children, such couples adopt children frequently, particularly in States where they can marry.

If Amendment One is ratified, it will become much easier for police or social workers to justify seizing such children, in the “best interests” of the child, even if the child was adopted in another State by a same sex couple lawfully married in that State, because such relationships are against the public policy of North Carolina.  Likewise, it will be easier for District Court Judges to justify such seizures.  An appellate court may reverse such a decision, but when was the last time you paid for an appeal to the Supreme Court of North Carolina?  It isn’t cheap.

If Amendment One passes, my advice to same sex couples married in other states, particularly where children are involved, would be never to bring those children to North Carolina.  North Carolina has lovely mountains and beaches, but so does Maryland and so do many others states which don’t enshrine discrimination in their Constitutions.

These considerations also apply to custody and visitation for biological parents of children who later enter same sex relationships (it happens).  It will be much more difficult for those parents to establish custody or gain visitation rights in North Carolina, no matter how good they are as parents.

Amendment One is expected to pass, unfortunately.  But the Speaker of the GOP-controlled State legislature knows which way the winds are blowing, in the long run:

State House Speaker Thom Tillis, a Republican from a Charlotte suburb, said even if the amendment is passed, it will be reversed as today’s young adults age.

“It’s a generational issue,” Tillis told a student group at North Carolina State University in March about the amendment he supports. “If it passes, I think it will be repealed within 20 years.”

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