What a Ban on Gay Marriage Could Mean for All North Carolinians

At a time when the federal government is moving in a direction toward the acceptance and legal recognition of lesbian and gay couples, specifically notable in the current administration’s refusal to defend the Federal Defense of Marriage Act in pending lawsuits, North Carolina may be taking a step in the opposite direction.

On Tuesday, September 13, 2011, the North Carolina Senate voted 30-16 to put a constitutional amendment on the ballot in May 2012 seeking to further ban gay marriage in North Carolina. The House approved the initiative the day before, by a vote of 75-42. If approved by voters, the amendment would become effective January 1, 2013.

At the outset of this discussion, it is worth noting that North Carolina law does not presently permit or recognize gay marriage. General Statute § 51-1.2 specifically provides: “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.” Since that law went into effect on June 1, 2006, it has not been challenged in any North Carolina appellate court.

Previously, the legislature has voted down attempts to write a ban on gay marriage into our State’s constitution. North Carolina remained the sole Southeastern state without such a constitutional ban. However, the amendment was recently introduced again, and was this time passed by both houses.

The amendment, as approved by the legislature, would read:

“Marriage between a man and a 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.”

Interestingly, although the bill approved by the legislature contained the second paragraph (above), designed to narrow the scope of the amendment by expressly stating it would not be applicable to private contracts or their enforcement, due to an oversight only the first paragraph of the bill will appear on the ballot for voters’ decision. If the ballot initiative passes, confusion may ensue regarding which language will actually be added to the constitution.

In either event, the effect of the amendment if passed is unclear. The phrase “domestic legal union” has never before been interpreted by our Courts, has never before been written in our statutes, and has never before been interpreted by a court of any other state. The language is broad and potentially far-reaching, affecting legal rights for unmarried couples, both same-sex and opposite-sex.

The impact would most likely be seen in the following areas:

Domestic Violence Laws
Presently, relief for domestic violence victims is available not only to married couples, but also to: persons of the opposite sex who live together or have lived together; people who have a child in common, whether married or unmarried; current or former household members; and persons of the opposite sex who are in a dating relationship or who have been in a dating relationship. If the amendment passes, it could be argued that affording domestic violence protection to unmarried couples (whether same-sex or opposite-sex) is an unconstitutional recognition of “domestic legal union” other than “marriage between a man and a woman.” At least one other state court has found similar domestic violence protections to be unconstitutional after the passage of an constitutional amendment banning gay marriage.

Domestic Partnership Registration
At least seven local governments within North Carolina (the towns of Carrboro and Chapel Hill, the city of Durham, and the counties of Orange, Durham, Greensboro, and Mecklenburg) offer registration for domestic partnerships and some limited benefits to the registered partners of their employees. Additionally, a number of private employers offer benefits to the domestic partners of their employees. These registrations and the associated benefits would almost certainly be rendered unconstitutional.

Family Law Matters
For decades, North Carolina has recognized the legality and enforceability of private contracts between unmarried cohabitants regarding their finances and property rights, as well as equitable claims for relief upon a separation. If the amendment is adopted without the second paragraph (specifically recognizing the continued enforceability of private contracts), couples’ abilities to enter into enforceable private contracts could be drawn into question. Either version of the amendment could have significant impact on their rights to seek equitable relief in a court of law.

Our Courts have also recognized the rights of non-biological parents when an unmarried couple intentionally created a family and created a parent-child relationship with the non-biological partner. It is conceivable that a family court judge would view this relationship and the corresponding custodial rights as unconstitutional if the amendment is passed.

Estate Planning Issues
The enforceability of wills, trusts, and powers of attorney used by unmarried couples to provide for their end of life decisions and property transfers would be subject to significant uncertaintyin light of the amendment.

The latest census data (from 2010) estimates there are 27,250 same-sex couples and 222,832 unmarried, opposite sex couples residing together in North Carolina. If the amendment passes, it will impact a large number of North Carolinians in both the ways set forth above, as well as in ways presently unknown that will be determined as our courts wrestle with the application of the new law.