Putting it together: Constitutional amendment pieces and how they fit

N.C. House Majority Leader Paul Stam is certain of one thing: “There is no legal controversy.”

Stam, a Wake County Republican, was referring to questions that have arisen over the wording set to appear on the statewide ballot next May, when voters approve or disapprove a constitutional amendment to define marriage between one man and one woman as the “only domestic legal union” in the state.

The ballot wording omits a second clause that appeared in the legislation (SB 514) passed earlier this month, which was added in a nod to the state’s business community. It states in part: “This section does not prohibit a private party from entering into contracts with another private party.”

That omission started questions flying about the ultimate interpretation of the amendment by voters — and if it is passed, conceivably by the courts. Stam thinks the questions amount to “making a mountain out of a mole hill.” As proof, he provided a document tracing original legislative language and comparing that to corresponding ballot wording. “We gave veto power to the governor,” he quipped, “that was 100 times longer” than the wording that appeared on the ballot.

The legislative leader (interviewed by telephone on September 28) is confident business benefits would not be affected by passage of the amendment. “That’s the main reason we added the second sentence, to calm their fears,” he said.

Jeanette Doran, senior staff attorney for the nonpartisan N.C. Institute for Constitutional Law, basically confirmed Stam’s opinion. “The state is not required to put the actual wording on the ballot,” she said in a telephone interview, although she terms that fact “shocking,” given her own litigation involvement on behalf of fully informing voters. But once voters approve an amendment, Doran said, it is the the language of the legislative bill itself that has “ultimate control.” That would mean that the proposed marriage amendment “would have no impact on private companies conferring benefits,” she added. “The constitution really is about what the government can do.”

The scene from across the aisle

Democratic members of the Buncombe County delegation — all of whom voted against the amendment legislation — still question the omission of the second sentence in light of the atmosphere surrounding its passage.

According to both Democratic Reps. Susan Fisher and Patsy Keever of Buncombe County, discussion and debate at the time of the House vote gave the impression that the business-friendly clause was to be part of the wording the public would vote on. “There were probably several legislators who believed this (clause) made the intent of the amendment more acceptable,” Fisher told the Xpress by email, admitting that she was “not aware at the time of voting that the language omitted the clause about business benefits.”

“I believe that either way, the business climate of this state will be affected if this amendment passes,” Fisher added. “We enjoy a very vibrant business climate in North Carolina for many reasons . . . (and) this kind of discriminatory disenfranchisement . . . will discourage businesses from locating here.”

Sen. Martin Nesbitt Jr. of Buncombe County, Democratic minority leader of the House, also voiced misgivings and commented on the complaints from the business community that drove the “private party” clause. “We had a list of probably 100 CEO’s saying this would set them back and hurt their businesses,” Nesbitt told the Xpress by phone. “I do think it will affect the business climate in the state.”

Keever addressed another ramification of the bill. “We voted on it realizing it would likely be taking away (benefits) in Asheville … (and) other municipalities that already give some partnership benefits,” she said by phone. “I think it’s very confusing to the voters, and that makes it hard to support either side.”

In addition to hearing from business leaders, the legislators received a critical letter from elected officials in several municipalities and counties that offer domestic-partner benefits: Asheville (signed by Brownie Newman as mayor pro tem), Durham, Chapel Hill, Carrboro, and the counties of Mecklenburg, Durham and Orange. The letter called the legislation a “threat” to the state’s ability to recruit a diverse workforce in a global economy and noted that it would “strip public employees of domestic partner benefits.”

According to Asheville City Attorney Bob Oast, he and attorneys in other cities currently offering such benefits are exploring the amendment’s potential effects. “We are looking at all aspects of this,” he told the Xpress by phone, in anticipation of a report to City Council.

Stam had an easy answer regarding the municipal question. “It will affect them,” he said bluntly. But he added that governmental entities could still offer benefits to domestic partners by simply saying that each employee can name one person, or one living-partner, as beneficiary. That, however, would be “a foolish thing to do,” he added, because it would jeopardize group health-insurance policy rates.

(Note: The Xpress was unable to reach Buncombe County’s Republican legislators for their comments. Sen. Tom Apodaca was out of town, according to his staff. Rep. Tim Moffitt did not return repeated emails and phone messages.)

by Nelda Holder, contributing editor