Amendment One – Part I – Unnecessary & Unclear

Yale law professor Stephen Carter, in his book Integrity, described integrity as having three parts:

  1. Taking the time to consider an issue – actually thinking about it and discerning what is right and wrong.
  2. Acting on the position you have chosen, even at personal cost.
  3. Being willing to speak up for your action.

While I’ve been a political junky for years, this election season is the first time I’ve taken action on a political issue beyond simply voting. I’ve got a sign in my yard, I gave a speech, and I’ve made get-out-the-vote phone calls.

I think the issue is that important.

The proposed Amendment One to the North Carolina Constitution is unnecessary, is unclear, harms people, and may harm even more through unintended consequences.

My next few blogs will cover problematic aspects of the proposed amendment.

It is unnecessary

Current North Carolina law states the following:

§ 51‑1.2. Marriages between persons of the same gender not valid. 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. (1995 (Reg. Sess., 1996), c. 588, s. 1.)”

Regardless of your personal moral or religious view on gay marriage, North Carolina law does not recognize it. The law is specific and clear.

It is unclear

The text of Amendment One reads as follows:

“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.”

Do you see the difference in the language?

The Constitutional Amendments Publication Commission consists of the Secretary of State, Attorney General, and Legislative Services Officer. Their job is to explain any constitutional amendment or revision in simple and commonly used language. Their explanation has three paragraphs.

The second paragraph of the official explanation describes some of the aspects that are unclear (my bold):

“The term ‘domestic legal union’ used in the the amendment is not defined in North Carolina law. There is debate among legal experts about how this proposed constitutional amendment may impact NC law as it related to unmarried couples of same or opposite sex and same sex couples legally married in another state, particularly in regard to employment-related benefits for domestic partners; domestic violence laws; child custody and visitation rights; and end-of-life arrangements. The courts will ultimately make those decisions.”

The third paragraph explains that sentence about contracts between private parties.

“The amendment also says that private parties may still enter into contracts creating rights enforceable against each other. This means that unmarried persons, businesses and other private parties may be able to enter into agreements establishing personal rights, responsibilities, or benefits as to each other. The courts will decide the extent to which such contracts can be enforced.”

While of course it’s part of the court’s job to determinable enforceability of contracts, to me the context and the final line in this explanation seems to indicate that there may be some debate whether or to what extent they can be enforced.

We are creating a potential legal morass with the lack of clarity in the amendment’s language.

Next: Amendment One – Part II – Harm & Unintended Consequences

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