Posted by: captainfalcon | May 9, 2012

Last one on Amendment One

It passed with 61% of the vote. That is a substantially greater percentage than the 55% of people who were either in favor of Amendment One, or “unsure,” on the assumption that it constitutionalizes a prohibition on both gay marriage and civil unions. One possible explanation for this is that what Amendment One means is unclear.

Amendment One’s operative language is: “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.” As this (reasonably objective) report from the North Carolina chapter of the ACLU makes clear, the phrase “domestic legal union” is new to North Carolina law. As a result, the legal impact of a constitutional prohibition on recognizing any “domestic legal unions” other than heterosexual marriage is unclear.

In the NC-ACLU’s assessment, Amendment One almost certainly outlaws the domestic partnerships that some North Carolina municipalities offer (pp. 11-12). It also likely forbids conferring benefits on the partners of public sector employees, as similar language has been interpreted that way in Michigan (p. 37).[1]  It is less clear, however, whether Amendment One will prohibit private employers’ conferring benefits on the partners of their employees (pp. 38-9), and also whether it affects contractual and child-custodial arrangements among cohabitating gay and straight couples (p. 17).

The interpretive uncertainly surrounding Amendment One may help to explain why more people voted for it than would have had they believed Amendment One constitutionalized a prohibition on both gay and domestic parternships. Conceivably, some voters could have concluded that that the meat of domestic partnerships — family law relationships among cohabitating couples, labor law benefits, etc. — would probably survive Amendment One’s passage. With domestic partnerships functionally preserved, a vote for Amendment One could have been seen as, in real terms, a vote simply to constitutionalize a prohibition on gay marriage.

Obviously, voter ignorance could also have played a role. In reality, I’d guess both are part of the explanation.

[1] Though, under certain social conditions, I would guess a legally permissible interpretation of Amendment One has it invalidating only the state’s recognition of domestic partnerships, not the conferring of benefits on the partners of public sector employees. How does the state confer benefits on partners without recognizing or deeming valid their partnerships? Simple: interpret recognition and validation as specific ceremonial acts performed by the state. Distinguish the conferral of benefits on partners as, not a ceremonial act, but merely an administrative one. The domestic partnership is not legally valid, it is simply a fact found in a proceeding to determine the allocation of benefits.


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