Point of View

Point of View: Watch the amendment's language

September 22, 2011 

— The marriage amendment on the ballot next May is being described as simply putting our current legal ban on same-sex marriage into the state constitution. Make no mistake about it, though: the proposed amendment goes much further than that.

Lawmakers who pushed the amendment didn't mention that it would also limit the rights of unmarried couples - both same-sex and opposite-sex. That's not a small group: the 2010 Census reported 222,800 unmarried couples in North Carolina, an increase of 55 percent in the past decade. Eighty-eight percent of these couples were opposite-sex; 12 percent were same-sex.

Same-sex couples, of course, cannot marry under current North Carolina law. You may ask, however, why the opposite-sex couples are not married. A recent story in this paper featured a couple who met late in life after they lost their respective spouses. For financial reasons, they have chosen to live as a committed, but unmarried, couple. Under the proposed amendment, this couple and other unmarried couples could lose many of their rights.

North Carolina's current law bars any marriage except that between a man and a woman. The language of the proposed amendment, on the other hand, goes beyond this state law: "Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State."

The difference between domestic legal union and marriage may seem like legal quibbling, but it has very different, and much broader, legal effects.

Not only would the amendment's language, if passed, make same-sex marriage unconstitutional, it would also certainly ban civil unions if the state sought to offer them in the future. The language would also invalidate the domestic partner benefits now offered by several local governments, including the municipalities of Chapel Hill, Durham and Greensboro, and Mecklenburg and Orange counties.

And courts could interpret the language of the amendment to ban many more of the limited range of rights available to unmarried couples. The problem is that we don't know how many more. The amendment would introduce the phrase "domestic legal union" into the constitution although its meaning is unclear. Further, this term has never been used in any law in North Carolina, never been interpreted by its courts and never been interpreted by courts in any other state in the country. Because of this, we simply don't know how much further beyond civil unions and domestic partnerships courts will say the amendment reaches.

Although no one knows for sure how broadly courts will interpret this untested language, it could have the following impact on unmarried couples:

It is very possible that this language could override existing domestic violence protections for unmarried partners. In Ohio, domestic violence convictions were overturned when the state added a similar amendment to its constitution. (The Ohio Supreme Court ultimately restored the protections, but only because the amendment's language was narrower than our own.)

The amendment could undercut existing child custody and visitation rights that are designed to protect the best interests of children.

The amendment could also prevent the state from giving any further rights to committed couples to order their relationships. For example, it would likely prevent the state from giving committed partners the right to determine the disposition of their deceased partner's remains. It would also prevent domestic partners from being added to the list of categories of people who have surrogate medical decision-making rights if their partner is incapacitated. Finally, it would prevent the state from in the future allowing second-parent adoptions by domestic partners, which ensure that both partners have a legal tie to, and legal responsibilities (including child support obligations) for, the children they are raising.

Less likely, but still possible, courts could interpret the amendment to invalidate trusts, wills and end-of-life directives by one partner in favor of the other.

Changing the North Carolina constitution - our state's foundational legal document - is not something that should be done lightly. And when it is done, the meaning of the changes should be clear. If voters approve the proposed amendment next May, they will introduce into the constitution vague and untested language whose scope is far broader than they likely realize. It is impossible to predict how courts will finally resolve the issues raised by this language. But two things are clear: First, it will take years of expensive litigation to settle the amendment's meaning. Second, when the dust clears, unmarried couples will have fewer rights over their most important life decisions than they would have had otherwise.

Maxine Eichner is Reef C. Ivey II professor of law at the UNC School of Law.

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