New defense-of-marriage proposal still discriminates, says Fisher

A new version of a proposed defense-of-marriage amendment to the North Carolina Constitution is slated for consideration today, Sept. 10, as the General Assembly reconvenes. A 1:30 p.m. hearing of the Senate Judiciary I Committee will focus on HB 61 — originally a constitutional amendment proposal to limit the terms of speaker of the House and president pro temp of the Senate. A proposed committee substitute deletes that bill’s original wording and creates “an act to amend the Constitution to provide marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.”

“The new version of the amendment is no less discriminatory than any other version that I’ve seen so far,” Rep. Susan Fisher told the Xpress by phone on Sunday. The Buncombe County Democrat was the only local-delegation member who responded to requests for comment on the bill (Democratic Rep. Patsy Keever emailed on Saturday that she was in California so was not yet familiar with the proposal.)

“It [the substitute bill] looks like it might do some things to protect businesses that offer health insurance coverage to people who are in domestic-partnership situations, but it is still just as discriminatory as — if not worse than — the original House version (HB 777), and looks more similar to the very bad Senate version (SB 106). It is not the compromise that the breaking news story from the News & Observer would lead you to believe. It’s as bad as it ever was,” concluded Fisher.

Word of the substitution spread over the weekend when a copy of the new wording was leaked to WRAL News in Raleigh (see “Legislative Sleight of Hand,” Sept. 10, Xpress). And although the current Senate calendar on the Legislature’s website gives notice of the substitute, proponents and opponents of a marriage amendment to the Constitution were left with little notification of the discussion. Sign-up for public comment must take place between 1 and 1:30 p.m. today. The committee meets from 1:30 to 3 p.m.

by Nelda Holder, contributing editor

Maxine Eichner, UNC School of Law professor, submitted this legal analysis to legislators:

Attached please find a statement on the effects of the proposed revised language for the senate’s marriage amendment bill. The original version of the proposed Senate bill, introduced in February of this year, stated that “Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”[1] On September 9, a revised version of this bill was circulated.[2] The revised version retains the same first sentence, but adds a second sentence stating “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.”[3] This revised version eliminates some of the broader possible interpretations of the proposed Amendment’s language, and therefore forecloses some of the negative consequences that could result from the Amendment.

Yet this new language still does not solve many other problems caused by the vague and untested language of the Amendment. As a result, the proposed Amendment’s scope is still unclear, potentially far reaching, and has the possible result of unsettling the rights of committed but unmarried couples in a number of legal areas. It could take years of litigation for courts to resolve these issues.

What the Original Amendment Language Did: The first sentence of the Amendment, which remains unchanged, does not simply place this state’s current statutory prohibition of same-sex marriage into the North Carolina Constitution. Instead, it prohibits state recognition or validation of “domestic legal unions” except marriage. In doing this, the proposed Senate bill would introduce into the Constitution a phrase that has never been used in any prior law in North Carolina, never been interpreted by its courts, and never been interpreted by courts in any other state.[4]

The bar on “domestic legal unions” would clearly ban relationship rights beyond same-sex marriage: at the very least, it would also bar recognition of civil unions, as well as the domestic partnerships now offered to public employees in some municipalities. The vagueness of this language and the absence of its use in prior law, however, mean that courts might interpret it far more broadly to upend completely the very minimal legal rights, obligations, and protections now available to unmarried couples, whether same-sex or opposite-sex. In the absence of revisions, this could have precluded not only public benefits to unmarried couples, including municipalities’ domestic partnership programs, but also the enforcement of agreements between unmarried couples, of domestic partnership benefits from private employers to their employees, as well as a host of other rights that stem from non-marital relationships, including domestic violence protections for unmarried couples.

What the Revised Language Does: The revised version invalidates some of the possible broad readings of the Amendment’s scope. In stating that the Amendment does not prohibit private contracts between parties or courts from adjudicating these contracts, the Amendment makes clear that courts can enforce legal agreements between unmarried partners. In addition, the Amendment would ensure that private employers could continue to give domestic partnership benefits to employees.

What the Revised Language Doesn’t Do: The revised language only limits broad readings of the original sentence’s vague and untested language that pertain to private contracts. It does nothing to preclude the possibility that courts will read that language to invalidate other rights and obligations connected with the relationships of unmarried partners that do not involve contracts. For example:

• The Amendment still has the potential to invalidate domestic violence protections for members of unmarried couples, as an Ohio court did with even narrower language in its state’s marriage amendment.[5]

• The Amendment could still interfere with existing child custody and visitation rights that seek to protect the best interests of children.

• The revision does not preclude courts from reading that language to invalidate trusts, wills, and end-of-life directives – which are not “private contracts” – in favor of an unmarried partner.

• Further, the revision would still invalidate domestic partner benefits now offered by several municipalities.

If you should have any further questions, I would be happy to answer them.

Maxine Eichner
Reef C. Ivey II Professor of Law
UNC School of Law

[1] S. 106, N.C. Gen. Assem., 2011-2012 Sess. (N.C. 2011).
[2] H. 61 CSSAx-69 [v.1], N.C. Gen. Assem. 2011-2012 Sess. (N.C. 2011).
[3] Id.
[4] An electronic search of the term “domestic legal union” produced no results in the North Carolina court database, in the multistate court database, or the federal database on LEXIS.
[5] State v. McKinley, 2006 WL 1381635, 2006 Ohio LEXIS 2379 at *6-10 (Ohio App. 2006). This case was later reversed by the Ohio Supreme Court in In re Ohio Domestic-Violence Statute Cases, 114 Ohio St.3d 340, 872 N.E.2d 1212 (2007). However, the reversal was based on the limitation in the Ohio amendment barring the creation or recognition of a legal status for “relationships of unmarried individuals that intend to approximate the design, qualities, significance or effect of marriage.” Id. at 216, 871 at 554 (italics added). This language limiting recognition of non-marital relationships only to those legal statuses that approximate marriage does not appear in North Carolina’s proposed Amendment. The proposed language in our bill would not call for reversal of a similar broad interpretation.


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One thought on “New defense-of-marriage proposal still discriminates, says Fisher

  1. Roger Hartley

    This is designed to attract biz type republicans who are uncomfy with discrimination. Rep. Fisher is right. It is still an amendment that is dangerous to human rights. It will undue Asheville’s domestic partnership law and will likely destroy majority backed future efforts to pass civil union laws.

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