Original Post:
Something a friend of mine posted:
(It's long... sorry.)
WHAT WILL THE MARRIAGE AMENDMENT DO?
Representative Paul Stam
NC House Majority Leader
February 2012
On May 8, 2012 the voters will decide whether this provision should be added to the State Constitution:
“Marriage between one man and one 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.”
This Marriage Amendment would recognize only domestic legal unions between one man and one woman. Domestic partnerships or civil unions, whether opposite-sex or same-sex, would not be valid or recognized here. The Amendment would prohibit the government from creating “same sex marriage”
The meaning of “legal union” as a judicially recognized status is concrete and clear in the context of family relationships. In federal law, “’marriage’ means only a legal union between one man and one woman as husband and wife…” 1 U.S.C. §7 (2005). This definition of marriage in federal law is consistent with the long-standing definition: marriage is the “[l]egal union of one man and one woman as husband and wife.” BLACK’S LAW DICTIONARY 876 (5th ed. 1979). The word “domestic” was added to the words “legal union” to clarify that other legal arrangements, such as business partnerships, would not be affected by this amendment.
Any benefits extended by government to a person based on a domestic legal union other than marriage would be prohibited. But Government could still extend employment benefits that impact or benefit non-married domestic households. The extension of such benefits, however, could not be predicated only upon the status of a domestic relationship other than marriage. For example, a city could still allow an employee to pick one other person of his or her choice to be the beneficiary for health insurance.
The second sentence of the Amendment makes clear that the Amendment would not prohibit private companies from entering into private contracts based on relationships chosen by the company. Private employers, for example, could continue to offer domestic partnership or civil union benefits to an employee’s same sex or opposite sex partner. The Amendment would prohibit the government from forcing a company to provide such benefit.
During the debate I was amazed at the baseless claims made by opponents. Several continue to be repeated by the media. Let’s set the record straight:
1. The Marriage Amendment will not adversely affect North Carolina’s economy. A 2011report by the American Legislative Exchange Council ranked states by economic performance between 1999 and 2009 and by economic outlook. 8 of the top 10 economically performing states have marriage amendments. None have legalized same sex marriage, civil unions or domestic partnerships. 9 of the 10 states forecasted to have the poorest economic growth have legalized same sex marriage, civil unions and/or domestic partnerships.
2. The Marriage Amendment Will Not Affect The Enforcement Of Domestic Violence Laws. Opponents would have you think the Amendment obliterates our domestic violence law. The cases they use as authority are Ohio appellate cases later overturned by the Ohio Supreme Court which found the domestic violence statutes consistent with the state’s marriage amendment. In Kansas the outcome was the same. Marriage amendments have had no effect on the enforcement of domestic violence statutes. 30 other states have marriage amendments. In all 30 states domestic violence laws continue to be enforced. I have read and reread our domestic violence statutes. I am unable to even comprehend the logic of this objection.
3. Legally Recognizing Only Heterosexual Marriage Isn’t Discrimination Against Homosexuals Wanting To Marry. Marriage between a man and a woman has existed in virtually every known society. It has served the purpose of channeling procreative sexual activity into an institution which will provide a stable environment for children produced from the sexual union of the partners in marriage. Recognizing that heterosexual marriage has provided the best environment for the rearing of future citizens North Carolina has regulated marriage for at least 340 years. Same sex marriage is an entirely different relationship with a completely different purpose. Expanding the marital institution to other relationships which serve completely different purposes ultimately undermines the institution which has proven to be the best and safest environment for children.
4. The Amendment Will Not Nullify Medical Powers of Attorney (MPOAs), Wills and Trusts if the parties are homosexual partners.
Under G.S. 32A-18 “any competent person who is not engaged in providing health care to the principal for renumeration, and who is 18 years of age or older, may act as a health care agent.” The relationship between the patient and the designated agent does not matter. The intent of the testator and trustor is the “gold standard” in NC for interpreting wills and trusts. The Amendment does not change the intent of the testator in either type of these instruments. The Amendment explicitly states that it will not affect the rights of parties to enter into private contractual agreements.
5. The Marriage Amendment Will Not Determine the Custody and Visitation Rights of Unmarried Parents Unless Their Behavior Affects the Child. Custody orders are based on the “parent”/child relationship, not on the domestic relationship between the “parents”. Courts have based custody and visitation on the “best interest of the child.” NCGS 50-13.2(2007) The sexual behavior of the party petitioning for custody or visitation is not determinative except as it affects the child.
The “de facto parenting doctrine” was applied in 2010 in Boseman v. Jarrell. The Supreme Court refused to allow adoption to an unmarried same sex partner but did award joint custody and visitation rights to that non-biological same sex partner who had become a de facto parent to the child.
There is a real threat to the institution of marriage. In several states same sex marriage has been imposed upon the people by courts that have engaged in tortured judicial reasoning – Massachusetts and Iowa for example. These courts have used the state constitutions to reverse the very pro marriage policies that were in effect when the state constitution was adopted.
Now it’s happening in North Carolina. Same sex couples in Asheville went to the Courthouse for two weeks last fall seeking to obtain marriage licenses. A lawsuit was filed by the Register of Deeds of Guilford County in December challenging our state’s marriage laws and asking the Court to declare them unconstitutional because they don’t allow same-sex partners to “marry”.
This Marriage Amendment will ensure that marriage between one man and one woman will be protected from result-oriented judges.
Voters will decide on May 8th.
For more information please visit www.VoteFORMarriageNC.com
My Response:
For anybody interested, a lot of the problems with the amendment are covered in this legal analysis by a few UNC law profs:
http://www.law.unc.edu/documents/faculty/marriageamendment/dlureportnov8.pdf
I believe the reasoning by the author in the pro amendment one article above is fallacious for several reasons. I don't have time to cover every point (the pdf above covers pretty much everything) but I wanted to hit a few of the highlights (addressing by the numbers originally used):
1) It's important to keep in mind that not only is this one study (by an obviously biased group...check their wiki page) but the study is not even addressing what should be the main concern. We're talking about *relative* economic impact (i.e. the impact to state in question before and after the amendment was enacted). I don't find it unbelievable that the passing of this amendment would make this state more, well, undesirable to the at least half of the population that is comfortable with same-sex marriage (see recent gallup polls concerning suport for same-sex marriage).
2) Yes, the Ohio supreme court did overturn these cases, after almost *3* years of turmoil and wasted resources. Additionally, the Ohio law was more specific stating "relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage". The NC amendment is much more vague and it is probable that courts will rule differently. This would mean that domestic violence protections would likely be given exclusively to those married instead of the previous definition of those in relationships stated below.
a) current or former spouses
b) persons of the opposite sex who live together or have lived together
c) parents and children and grandparents and grandchildren, including persons acting in loco parentis to a minor child
d) people who have a child in common
e) current or former household members
f) people of the opposite sex who are in a dating relationship or have been in a dating relationship.
3) I think this premise fails on several levels, theoretical and pragmatic. First, while I'll be the first to admit I haven't researched the entire history of marriage in the United States, it seems antiquated to believe that it's all about child rearing. Not only does this discriminate against childless couples, but fails to address the global concerns about overpopulation and scarcity of resources (i.e. should we even be encouraging this interpretation of marriage?). I prefer a definition based merely on the legal recognition of of a loving relationship between two adults.
It's also ridiculous how prevalent the myths are about same-sex parenting. I know I'm not supposed to cite wikipedia (hey, I'm graduated now and can do what I want), but here's a relavent paragraph from the page on LGBT parenting that says it much better than I could:
"Scientific research has been generally consistent in showing that gay and lesbian parents are as fit and capable as heterosexual parents, and their children are as psychologically healthy and well-adjusted as children reared by heterosexual parents.[3][4][5] Major associations of mental health professionals in the U.S., Canada, and Australia have not identified credible empirical research that suggests otherwise.[5][6][7][8][9] Based on the robust nature of the evidence available in the field, Third District Court of Appeal State of Florida was satisfied in 2010 that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.[10]"
I don't have time to address the rest of the article. If anybody is interested, please read the leal analysis I posted above for a more in-depth response to most of these claims. I hope I've at least shown that the reasoning behind those supporting the amendment is suspect. I hope everybody takes the time to go vote against something in our state that would literally strip the rights away from your fellow human beings.
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