Proposed Changes to the North Carolina Constitution

Last week was a tough one for lots of us who live in North Carolina.  The North Carolina General Assembly met for the purpose of determining whether or not to submit a constitutional amendment known as the “Defense of Marriage Act.”

The language of the proposal is deceptively simple:

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.

The question that many of us have, though, is whether or not a constitutional amendment of this type is necessary.  We already have a law on the books – North Carolina General Statutes Section 51-1.2, which says:

Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.

So do we really need to write the same prohibition into the State Constitution?  What are the repercussions if this going to be?

The confusion is further enhanced by the fact that the ballot that will go to the general public will only have the first sentence on it – the part about not prohibiting private contracts isn’t a part of what the public gets to consider when they are voting.

The problem with that, as I understand it, is that the second sentence won’t be “law”.  It’s merely an explanatory note, which means that it’s subject to interpretation.

It might not seem like that’s a big deal – after all, some 30 states have constitutional amendments that limit marriage to one man and one woman and another 12 or so have statutes prohibiting it.  The difference, though, is that part about “. . . only domestic legal union. . . “, which is much broader than most of the rest of them.

How so?  Say a heterosexual couple have chosen not to get married – there are lots of reasons for this, from changing social security and retirement benefits to simply having vowed never to get “a piece of paper” again after a bad prior marriage.  With the proposed language in just the first sentence being enacted, it’s very possible that one person’s employer-sponsored health insurance may no longer be available to the other.

Say one person in the same couple has to go into the hospital for some type of emergency – their partner may be excluded from the hospital room or not be allowed to make medical decisions on their behalf because they’re not married.  Whether or not they could complete documents (such as a Health Care Power of Attorney) that would work around this is one of those questions that are up in the air, but there seem to be some pretty strong arguments that those types of documents would no longer be valid.


Suddenly the legislation seems to have missed its mark and is now impacting people not intended to be the target -- or maybe this collateral impact is in fact intended, but just not discussed.  It's hard to say which is the case.

These are legitimate questions that the voters of our state can answer either direction, but the potential for unintended consequences is pretty significant.  How many people will become uninsured – and thus a burden on society – if their unmarried partner’s health insurance is no longer available and regardless of their sexual orientation?

Are we as a society up to an informed and intelligent debate, or is this whole process likely to be sidetracked by special interests – both for and against – that may influence people who don’t do their homework before they vote?

This is going to take some thought.