Understanding Amendment One in North Carolina

On May 8^th, North Carolina voters (that is probably you) will go to the polls (hopefully) to vote on Amendment One.  Amendment One would theoretically change the North Carolina Constitution to ban same sex marriage. 

The actual wording of the Amendment is as follows: 

“Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state."

The wording is a bit confusing and a little vague legally.  That has contributed to great confusion among people I have talked to as to what they would actually be voting for or against. 

In an effort to help educate people on the Amendment, I have included below the Executive Summary of an article entitled “Potential Legal Impact of the Proposed Same-Sex Marriage Amendment to the North Carolina Constitution” (footnotes omitted).  You can read the whole article here.  This article was written by law professors at the UNC School of Law (my alma mater in the interest of full disclosure). 

One thing to understand initially is that North Carolina does not recognize same sex marriage.  Same sex couples cannot get married or divorced in North Carolina under current law.  Perhaps that is one reason for the confusion.

My hope is that you will feel a little less confused about the Amendment and it’s potential impact before you vote on May 8^th (I strongly encourage everyone to vote!).  Also, this is by no means the only view of the Amendment.  But, it is the most unbiased and academic one that I could find that was not from a political based group. 

EXECUTIVE SUMMARY

The proposed Amendment would not simply place this state’s current statutory prohibition of same-sex marriage into the North Carolina Constitution, as its sponsors seek.

Instead, the proposed language is problematically vague, untested, and threatens to upend years of settled law. In prohibiting state recognition or validation of “domestic legal unions,” the proposed Senate bill would introduce into the Constitution a phrase that has never been used in any prior statutory law in North Carolina, never been interpreted by its courts, and never been interpreted by courts in any other state.  Taken as a whole, the bill’s language is sufficiently vague, and its

scope significantly unclear, that it would enmesh our courts in years of litigation to untangle its appropriate meaning. Moreover the eventual result of judicial interpretation of the Amendment would be uncertain.  It could, however, be interpreted to upend completely the very minimal legal rights, obligations, and protections now available to unmarried couples, whether same-sex or opposite-sex.

The Amendment could be construed by courts to:

 Prevent the courts from enforcing private agreements between unmarried couples, therefore encouraging the wealthier members of couples to avoid marriage so that they will not be subject to obligations to transfer property;

 Interfere with child custody and visitation rights that seek to protect the best interests of children;

 Invalidate protections against domestic violence to members of unmarried couples;

 Interfere with end-of-life arrangements, such as wills, trusts and medical powers of attorney, executed by unmarried couples;

 Invalidate domestic partnership benefits currently offered to same-sex and opposite-sex couples by local municipalities;

 Prevent courts from enforcing private employers’ agreements to provide benefits such as health insurance to employees’ domestic partners. 

The vague and untested language of the Amendment would therefore cause real harm to a broad range of North Carolina citizens. The proposed Amendment could be interpreted to strip the increasing number of unmarried heterosexual couples of their ability to order their relationships and property through contract, deny legal protection against domestic violence, and cut them off from custody of their children.  By the same token, committed same-sex couples in North Carolina, who are already precluded from marrying, would also no longer have access to these minimal protections.  Even if courts did not ultimately adopt a broad interpretation of the Amendment’s language, these couples’ rights would be uncertain during the inevitably long period of time that it took for these issues to work their way through the courts.  The Amendment’s broad sweep would also interfere with municipalities’ freedom to determine domestic partnership benefits for their own employees.  It could also undermine private employers’ efforts to attract top employees to North Carolina by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits.  Finally, the breadth of the Amendment’s language and its untested terminology will significantly tax the resources of North Carolina courts, which will be charged with interpreting its scope.  

Divorce Insurance, Pre-Nups and Co-habitation Agreements in North Carolina

As this recent New York Times article points out, some people are choosing to begin their marriage with the (potential) end in mind.

Pre-nuptial (a/k/a pre-marital) agreements have been around for a long time.  The new trend is that couples that cannot, or do not want to get married are choosing to put their understanding about how their relationship will work and how it will end in writing up front. 

 In North Carolina, same sex couples cannot be legally married.  So, a pre-marital agreement is not an option. Given that the number of same sex couples in North Carolina has risen 68% since 2000, cohabitation agreements may become far more popular.

For heterosexual couples that want to live together but choose not to marry, a pre-marital agreement is likewise useless.

But, both kinds of couples have the option of executing a co-habitation agreement. 

This kind of agreement can set forth the understanding of how the relationship will operate.  For instance, the terms can state that one partner will stay at home to raise children, while the other is expected to earn the family funds at work.  Or, it can state that both parties will work outside of the home. The agreement can state how many children each party expects to have or adopt, how many vacations the couple will take and even whether one of the partners is expected to cook meals (I have actually seen that).

More commonly, these co-habitation agreements pre-arrange how (but not if) the relationship will end.  The terms often set forth how assets and debts of the relationship will be handled in the event of a break-up.  They can dictate what process the parties will use to determine these issues in the event of the break-up (Collaborative Law, mediation, etc…). 

Some see these agreements as cold or anathema to romance. But many couples are comforted to know that they have agreed not to drag each other through a nasty court battle if things don’t work out.  And, having a discussion about big important issues and expectations before entering a long-term relationship is a good idea, even if it does not lead to an agreement. 

As for divorce insurance, one company (in North Carolina of all places) thinks it’s a great idea. 

From my point of view, the best insurance for your marriage is to discuss the big issues before you get married, and then commit to really truly communicating during the relationship.  Discussing the terms of a pre-nuptial agreement encourages that conversation far more than simply buying an insurance policy.