It started out a close race: 55/45, 53/47, back and forth. But it was early in the night, with few precincts reporting in. The balance shifted mightily to 60/40 and ended 61/39. Amendment One passed.

The citizens of North Carolina chose to embed discrimination in the state constitution.

I had already been embarrassed to have such a proposal on the ballot. Now I was ashamed.

As I wrote about Amendment One, as I spoke and made phone calls, as I stuck that AGAINST sign in my yard, I came to appreciate the battles that have been fought—that continue to be fought—for civil rights. My heart shifted from logic to justice.

I started to feel the impotent rage that many before me must have felt. Anger at the tyranny of the majority, anger at the institutional bigotry, anger at an unfair system.

Relief that it is not my personal life affected. Guilt that I didn’t do more. Guilt that I could so easily put it out of my everyday mind.

Guilt about the curious realization that I might not have been strong enough to fight for civil rights, for women’s equality, for mixed-race marriages.

How do you accept such a defeat and, even in the knowledge that the law may change in 20 years, how do you keep going in the fight? How do you channel the rage for a sustained battle?

I felt bitter, heavy, low.

My salvation came from the unlikeliest of places: the Greater Raleigh Chamber Economic Development Forum.

Joel Kotkin, “uber-geographer” and futurist, spoke for a half hour on where the Triangle ranks in a variety of categories that land it time and again near the top of “Best place to [live/work/your-verb-here]” lists. He spoke of geographic and generational trends. He showered the Triangle with praise.

During the Q&A session, the last question asked was “What will be the impact of passing Amendment One?”

His short answer: Probably not much. Thirty states have similar laws or amendments and we haven’t seen an immediate migration away from those states—mostly because it’s not practical.

His longer answer: Laws like this are an artifact of the past. They are remnants from a prior time. They will go the way of anti-miscegenation laws.

Two main factors tend to influence attitudes on gay marriage, he said: age and where people live. The younger they are and the more urban they are, the more accepting they tend to be of gay marriage. The older and more rural, the less accepting.

Kotkin was confident that anti-same-sex-marriage laws would be removed within his lifetime.

As he spoke, I observed many heads nodding in agreement.

Laws like this are an artifact of the past. That was my new touchstone.

I could tolerate this one step back because I knew the two steps forward would come…with time.

***

 “I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. And from what I see I am sure it bends towards justice.”

—Theodore Parker (abolitionist Quaker 1853)

My husband and I early-voted on Saturday. We didn’t realize the downtown was filled for a street event, so finding a parking spot took longer than expected. Once we hiked to the early-voting location, we took our place at the end of a line that wrapped around two sides of the block. As we stood in the mid-day warmth, marked-up sample ballots in hand, and the line crept forward, we tried to remain patient. We had other errands to run, a full day of activities planned. This was supposed to be a quick in-and-out effort.

We reminded ourselves, more than once, that we were lucky to get to vote.

But as a process improvement analyst in a past life (think Lean and Six Sigma), I couldn’t help but speculate where the bottleneck might be. I predicted it would be at the initial check-in point where the poll worker looked up your record, verified your information, and signed the sheet that said you were you. I knew that since it was an early-voting location it would not be quite as easy as going to the A-L or M-Z station at our regular polling place and pointing to our names in the book.

Indeed the check-in was the bottleneck. My irritation began to show as we stood observing two dozen empty voting booths while only three poll workers checked people in.

“It doesn’t help to complain,” my husband said, more than once.

After an hour of standing in line, we were glad to have cast our ballots—and had completely missed our next appointment.

We reminded ourselves, more than once, that voting was the most important thing on our to-do list that day.

We forget, all of us, we forget on a regular basis, how lucky we are to have the right to vote. Those of us who aren’t white males haven’t always had that right here in the US. (Thank you, 15^th and 19^th Amendments!)

We forget that people around the world struggle for the opportunity to cast a ballot. We forget that some people have to worry about suicide bombers and armed attacks when they go to the polls. We forget that some people consider a purple thumb precious.

Instead we complain about getting time off work, about waiting in line, about inefficient processes. We complain about having to educate ourselves about who and what is on the ballot.

We forget that our problems are first-world problems.

To all the election workers who staff the polls so the rest of us can simply show up and vote: Thank you.

During the debate over whether North Carolina should add an anti-same-sex marriage amendment to its state constitution, there have been many articles in the News & Observer, many letters to the editor, many opinion pieces. I found two fascinating stories that provide some historical context in which to view the debate.

How Southerners changed traditional marriage

The first article ran April 19 and was by Patrick O’Neil, an assistant professor of history at Methodist University in Fayetteville.

In response to claims that the definition of marriage should not be changed because it has been the foundation of society throughout history, Professor O’Neil demonstrates that indeed North Carolina itself has made fundamental changes to marital tradition, including that of coverture. In 1868, North Carolina passed the Married Women’s Property Act, allowing women to retain ownership of property they brought to marriage.

It’s an interesting history and O’Neil takes no position on the current debate. He simply points out that our ancestors did not consider marriage a sacred cow.

The marriage amendment, 1875

The second article ran May 5 and was by Gene Nichol, the Boyd Tinsley distinguished professor at UNC’s Law School.

Nichol describes how almost all constitutional alterations (Prohibition was an exception) fall into three categories:

1. they outline foundational liberties,
2. they restructure government powers and processes, or
3. they extend rights of membership and participation to new frontiers.

North Carolina’s Amendment One on the May 8 ballot does none of these things.

This isn’t the first time North Carolina has used the state’s guiding document as a way to enshrine discrimination.

In 1875, North Carolina altered its charter to declare that “all marriages between a white person and a Negro or between a white person and a person of Negro descent to the third generation inclusive are, hereby, forever prohibited.”

Both articles are well worth the read.

On May 8, let’s hope we end up on the right side of history.

There are many people against this amendment. Plenty of the ones you would expect:

• The Democratic Party, including Gov. Bev Perdue, Sen. Kay Hagan, and Attorney General Roy Cooper, who called it “unclear, unwise, and unnecessary.”
• The Libertarian Party
• Church leaders, congregations, and organizations such as Unitarian Universalists, United Church of Christ, North Carolina Council of Churches, Bishops of the NC Episcopal Dioceses, and several Baptist organizations.

There are also some folks against the amendment that you might not expect:

• Business people such as Bob Page, founder of Replacements, Ltd., and Jim Rogers, CEO of Duke Energy.
• Republicans such as Richard Vinroot, former mayor of Charlotte and GOP gubernatorial candidate.
• Not Right NC (a Republican organization against the amendment).

Then there are the VERY unexpected voices against Amendment One:

Rep. James Crawford (D – Granville/Vance) was one of the original sponsors of the amendment. He has stated, “I will definitely vote against it because I think it goes too far.”

Even the Institute for American Values, the pro-marriage think tank, thinks this amendment goes too far. You may remember they were strong supporters and expert witnesses that advocated for Prop 8 (the 2008 California amendment that stated only marriage between a man and a woman is valid or recognized). From their opinion piece in the N&O (4/11/12):

“The proposed amendment…goes well beyond the issue of same-sex marriage.

“For one thing, it means that North Carolina could not, now or ever, take any step or devise any policy to extend legal recognition and protection to same-sex couples. No domestic partnership laws. No civil unions. Nothing.

“That’s mighty cold. If you disdain gay and lesbian person, and don’t care whether they and their families remain permanently outside of the protection of our laws, such a policy might be your cup of tea. But it’s not our view, and we doubt that it’s the view of most North Carolinians.”

Wow. Strong words from anti-same-sex marriage advocates.

Vote AGAINST Amendment One

Regardless what you think of allowing same-sex couples to marry, this amendment goes too far. It’s unnecessary and unclear. It causes harm, and it has the potential for great harm through unintended consequences. Many people—gay and straight, conservative and liberal—agree.

But our Yale law professor, Stephen Carter, in speaking of integrity, also said that people of good faith can look at the same issue and come to different conclusions.

I encourage you to vote AGAINST the amendment to the NC constitution on May 8. But regardless of your position, I encourage you to vote.

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

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