OPLC Attorney Mike Smalz Quoted in Huffington Post Piece on Same Sex Marriage
Same-Sex Marriage: North Carolina's Proposed Ban, Amendment One, Could Create 'Legal Chaos'
Next month, North Carolinians will vote on a constitutional amendment that its supporters say will simply define marriage as between a man and a woman.
Same-sex marriage is currently illegal in North Carolina. But the measure's proponents are hoping North Carolina will join the 12 other Southern states with a constitutional amendment formally defining marriage as being between a man and a woman.
"The amendment will allow the people of North Carolina to decide what marriage is defined as," said state Senator Daniel Soucek, a Republican sponsor of the bill. The law also bans civil unions as well as same-sex marriages.
"It's not just the term 'marriage,'" he told The Huffington Post. "It's all of the societal communal building blocks that make up traditional marriage. We think that's the healthiest way to raise children."
But a broad-ranging and bipartisan group of opponents are concerned that Amendment 1's potential consequences could reach far beyond the chime of wedding bells.
EFFECTS ON COUPLES
For same sex couples in the South, North Carolina has stood out as a bright light of possibility, where domestic partner benefits have been recognized in some cities and by some private companies.
Libby and Melissa Hodge moved to North Carolina from Georgia in 2008 -- where a similar marriage amendment was passed in 2004 -- in hopes of a more secure life for their daughter, 4.
The women married in Vancouver in 2006, but have yet to live in a state that recognizes their marriage.
After Georgia's amendment passed, they began looking for jobs in what they thought would be a friendlier state. Eventually, Libby Hodge found a job with the city of Durham, one of several local governments in North Carolina offering benefits to domestic partners; she now receives health coverage that covers Melissa Hodge's biological daughter. (The Hodges requested that the child be referred to only by her middle name Elaine.) The Hodges planned for a second parent adoption, so that Libby could be also be legally recognized as Elaine's parent, providing more financial security for the child.
But in 2010, the North Carolina Supreme Court ruled against a second parent adoption in families headed by a same-sex couple, making an adoption far more difficult. And if Amendment 1 passes in May, Elaine will lose her health benefits through Libby's plan. For Elaine to be covered by Melissa's plan could cost an additional $500 a month.
The Hodges are feeling additional financial uncertainty because the amendment would raise questions about how the courts would deal with not only child custody issues but also about visitation rights and end-of-life arrangements.
"It's hard to know where the ripple will stop if something goes wrong," Libby Hodge said. "We still don't know exactly what the effects of the amendment will be, and we don't know how to plan for that. You just pray that nothing ever goes wrong."
Unmarried straight couples living together would also lose any domestic partner benefits they might have if the measure is passed. But they have a potential solution: getting married. The Hodges now say that because of the uncertainty with their finances, they might have to move again, although both would prefer to stay in the South, near their extended families in Georgia.
The possibility that other workers could move out of state is a concern for Cathy Bessant, a global technology and operations executive at Bank of America, which is headquartered in Charlotte. In a video that Bessant recorded for the Coalition to Protect North Carolina Families (an opponent of the amendment), she said the measure would have "a disastrous effect" on the ability of businesses in the state to compete for jobs and economic growth.
"What Amendment 1 does is make it look like we're a state that ignores both the needs and the preferences of the next generation of America and the world's workforce," Bessant said.
Opponents of Amendment 1 are also worried about possible side effects that they say could affect all unmarried North Carolinians -- gay or straight -- if it is approved. For example, unwed victims of domestic violence could find themselves with fewer legal recourses for protection. The extent of this is unknown since it would depend on how courts would interpret the language of the amendment.
Amendment 1 prohibits state validation or recognition of “domestic legal unions,” a phrase never used before in North Carolina statutes, according to a publication issued by the state to explain the amendment.
"The problem is, we don't know what this language means or how courts would interpret this," said Maxine Eichner, a professor at the University of North Carolina School of Law. "If courts were going to interpret the constitutional amendment as invalidating any rights or protections for unmarried couples, it would invalidate domestic violence protections." According to Eichner's report on the potential consequences of the amendment, Ohio's history shows a possible downside for victims of domestic violence.
From 2005 to 2007 after Ohio passed a similar marriage amendment, defense attorneys won dismissals of domestic violence charges for some unmarried defendants: The lawyers argued that the state's domestic violence law could no longer apply to unmarried couples. While some courts ruled that the domestic violence law applied to any couple, other judges told unmarried individuals seeking protection that there was no point to pressing domestic violence charges. Although these victims could still file for assault charges (with lesser penalties), they were unable to file for protection orders or other measures. In the summer of 2007 Ohio's Supreme Court ruled to limit the marriage amendment's reach to ensure that unmarried couples would be covered by the state's domestic violence statute.
"Chaos reined in the courts," said Mike Smalz, the family law attorney at the Ohio Poverty Law Center. "Our amendment certainly had a harmful impact on the ability to protect victims of domestic violence and to prosecute [perpetrators] of domestic violence. To those in North Carolina, I would say be very wary of the unintended consequences of enacting this type of amendment."
Even Sen. Soucek, the North Carolina bill's sponsor, acknowledged this possibility. "There is some question in the courts as to how that will all work out," he replied when asked if unwed domestic violence victims might go unprotected. Soucek told The Huffington Post he would personally "lead the charge if there's unintentional harm."
But for Soucek, the importance of limiting marriage to a female bride and male groom outweighs the possible consequences, which he claimed are exaggerated. "Nothing in life is 100 percent sure," he said. "But when you look at the benefits of this amendment, they far outweigh the risks."
"What benefits?" questioned Beth Froehling, the executive director of the North Carolina Coalition Against Domestic Violence, about the amendment's assets. "We already have a law in North Carolina that bans same sex marriage."
Froehling's organization has teamed up with the Coalition to Protect North Carolina Families to advocate against the amendment and its possible consequences for victims of domestic violence. "Our perspective, based on what's happened in other states, is that the risks are not small, if you think about how many victims could be going without protection and how many more potential homicides we might see in this state."
Last year, 73 North Carolina homicides resulted from domestic violence, theCharlotte Observer reported. Froehling believes this number could rise if Amendment one passes.
Froehling believes it's necessary to educate the public about these possible outcomes.
A recent survey by North Carolinians by Public Policy Polling showed that a majority of North Carolinian support but don't understand the amendment. While 58 percent of North Carolina voters supported the amendment, 38 percent were against. At the same time, the same poll showed that 51 percent of these voters support some form of legal recognition for same-sex couples, while only 45 percent completely opposed any such recognition. Less than one-third of voters correctly identified that Amendment 1 bans both same-sex marriage and civil unions.
Even some Republicans are acknowledging that attitudes about marriage are in flux. Last week the Republican speaker of the House, Thom Tillis, who voted for the amendment, said it would be repealed within 20 years.
"It’s a generational issue," Tillis has said. “The data shows right now that you are a generation away from that issue."
After hearing the speaker's remarks, Richard Vinroot, a Republican political figure and attorney in Charlotte, said that the potential side effects of the amendment bothered him. "I don't think we should be amending our constitution for something so temporary and in this case so redundant," he said.