Perhaps the most surprising development in the fight over Amendment One is that so many leading North Carolina conservatives oppose it.
Republican U.S. Rep. Renee Ellmers of Harnett County early announced her opposition. Former Charlotte mayor and gubernatorial candidate Richard Vinroot made a critical video.
Particularly damning is opposition from various thought leaders. Former Supreme Court Justice Robert Orr quipped that when an amendment has to be “put into the miscellaneous section” it probably ought not pass. Russell Robinson of Charlotte, dean of North Carolina corporate lawyers, as well as grandson of our current constitution’s lead drafter, denounced the measure in a video made with his wife. And John Hood, president of the John Locke Foundation, the leading conservative think tank, wrote that the amendment is “unwise and unfair”.
Putting Amendment One before the voters was a high priority for Republican legislative leaders (House Speaker Thom Tillis, who organized passage of the amendment in the General Assembly, says he will vote for it but predicted that if it’s enacted, repeal would come in 20 years.) Now that the vote nears, why are so many conservatives opposed?
Conservatives are troubled by the big government aspect of Amendment One. John Hood wrote: “The real threat to marriage is not the prospect of gay people getting hitched. It is the reality of straight people too quickly resorting to divorce or never getting hitched in the first place.” Hood points to a spiritual problem, not one that regulation can solve.
Then there’s the outright restriction of individual rights. Only a month after the U.S. Supreme Court heard powerful arguments against the health insurance mandate as unconstitutional, it rings hollow to many conservatives to insist that the heavy hand of the state come down against people who want to commit themselves to sharing a life. Put simply, if there is a liberty interest in choosing to buy health insurance, isn’t there a liberty interest in choosing to marry?
If Amendment One were simply an annoyance to business, then conservatives wouldn’t have so much trouble backing it. But it’s so bad that scores of normally apolitical business leaders have written or spoken publicly in opposition.
Jim Rogers, the CEO of Duke Energy (speaking for himself, not the utility), lambasted Amendment One during a speech in Charlotte recently. A top Bank of America executive said that passage would be “disastrous” for the state’s business climate.
Among emerging growth companies, the situation is even more pronounced. North Carolina is uniquely hard hit by measures that cut our advantage in fields such as technology and life science, which rely on hiring talented people of diverse backgrounds. Amendment One attacks this creative meritocracy.
One of the strongest criticisms conservatives make of liberal social legislation is that overly broad language forces judges to make law. This happened in Ohio, which passed a amendment similar to ours. There, multiple men accused or already convicted under the state’s domestic violence statute contested their guilt on constitutional grounds. The reason? The women they abused, threatened or assaulted weren’t their wives. It took the Ohio courts two years to decide they were guilty anyway.
Conservatives criticize sweeping laws that attempt to control the future – witness debates over climate change. Conservatives believe in less certainty of prediction than liberals, and want market forces of all kinds to play out. U.S. Chief Justice John Roberts wrote in a recent case involving police searches that he wished for a limited result that would not “embarrass the future.”
Here the chief justice and Speaker Tillis are on the same page. Explaining his view that if enacted the amendment would be repealed in 20 years, the speaker noted before an N.C. State University audience that college students felt differently about it than their boomer parents, and by large numbers.
Conservative leaders of North Carolina have always valued our tradition of safeguarding individual liberties against government powers. We were among the last states to sign the federal Constitution, and refused to do so until Congress passed the Bill of Rights. Our constitution of 1868, written by Republicans, is significantly a rights-based document. During his time in Washington, former Sen. Sam Ervin stood up to constitutional threats from Joseph McCarthy’s show trials to Richard Nixon’s Watergate. This conservative tradition continues to the present day.
Mistakenly, supporters of Amendment One insist it be enacted because North Carolina remains alone among Southern states in not passing an anti-gay marriage amendment. Somehow we’re behind in the Dixie League standings. But North Carolina has never competed well with our neighbors in passing laws restricting individual rights. In fact, with the notable exception of the short-lived Speaker Ban Law, we’ve generally sat out the competition altogether.
Amendment One doesn’t fit this tradition. Should the measure be defeated by the voters on May 8, conservatives will have played a major role in its demise.
John Russell is a Raleigh lawyer and author of “Favorite Sons,” a novel of North Carolina politics.