Employment benefits for domestic partners

Opponents and supporters of Amendment One are pretty much in agreement that if the amendment passes, domestic partners (same or opposite sex) will lose benefits if they are currently receiving them as government employees.

This is a direct impact due to the change in the language from the current law:

“Marriages… between individuals of the same gender are not valid in North Carolina.”

to the proposed amendment language:

“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.”

While private parties may be able to retain existing benefits according to the second sentence (contracts between private parties), public employers do not have that right.

Domestic partner benefits are currently offered in nine local governments across the state. This change would eliminate benefits for about 70 households. (N&O 4/26/12)

It doesn’t sound like much—unless it is your family, your children losing insurance coverage.

Is this a real issue? Two states have been through battles on this topic.

• Michigan passed a similar amendment in 2004. In 2008, the court found that it barred government entities from offering benefits. Entities tried to create workarounds (as has been suggested in NC), but last year Michigan made it illegal for local governments to offer benefits. (N&O 4/26/12)
• Idaho’s attorney general in 2008 said that city governments could not offer domestic partner benefits under the state’s same-sex marriage ban. (N&O 4/26/12)

While it appears to be a given that these 70 families will be affected, there is also a slim but real chance that non-government employees could be affected as well. Remember: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.”

If the second sentence (re contracts between private parties) does not allow for recognition of domestic partners by private employers, up to 198,000 households across the state could be affected, 91% of which are heterosexual couples. (N&O 4/26/12 quoting US Census)

In most states with an anti-same-sex marriage amendment, domestic partner benefits are not an issue. The problem with North Carolina’s amendment is that it is broader and vaguer than the amendments in most states. (N&O 4/26/12) Ultimately, we are back to letting the courts decide.

Domestic violence laws

One of the most serious possible unintended consequences of Amendment One is a negative impact on the enforcement of domestic violence laws. Due to the unclear language in the amendment, there may be a conflict with existing domestic violence laws about who they apply to.

Is this a real threat?

Ohio passed a similar anti-same-sex-marriage amendment in 2004. Domestic offenders challenged the domestic violence laws as not applicable because they were not married to the victim. In 2005 Judge Stuart Friedman held part of the domestic violence law unconstitutional. The Ohio courts were inconsistent in their interpretation, and the issue finally went to the Ohio Supreme Court in 2007, where the domestic violence laws were found constitutional and applicable. In the meantime, offenders were released from jail or had their cases thrown out in 27 instances. (NCDP)

Again, it doesn’t sound like a lot of people affected—unless it is your case, unless you are the victim.

North Carolina’s amendment is broader than the Ohio amendment, and supporters have already acknowledged it may affect the existing domestic violence laws.

The courts will have to decide.

Other possible implications for unmarried couples

There are several other situations in which the rights of same-sex or opposite-sex unmarried couples could be negatively affected.

• Child custody and visitation rights
• Hospital visitation
• End-of-life arrangements

You can read about all of these in the press or online. It’s not just gay people who are affected; it’s gay, it’s straight, it’s children, it’s elderly.

Will they have “private contracts” in place to address these issues effectively? If they do, we keep coming back to the Commission’s explanation: “…The courts will decide the extent to which such contracts can be enforced.”

Overall, with the lack of clarity in the language of the amendment, we are creating legal problems where they do not currently exist. This is bad policy and bad law—especially when it is enshrined in the state constitution, which is meant to protect rights, not remove them.

Next: Amendment One – Part III – People AGAINST the Amendment