Did marriage amendment opponents overstate its impact?

UPDATE: Greensboro City Attorney Mujeeb Shah-Khan says the city has no plans to make any changes to its domestic partner benefits policy, citing the Juffrus opinion. He said the city is also interested in seeing how the NC Attorney General responds to an inquiry from the city of Charlotte about whether local governments may provide domestic partner benefits and possible lawsuits challenging the practice. He added that he is aware of no lawsuits that have been filed. 

ORIGINAL POST: I thought it would be worthwhile to examine how the marriage amendment, approved by North Carolina voters in a referendum during the primary election in May, is affecting LGBT folks in North Carolina, as well as unmarried couples, gay and straight. As reporting assignments go, it seems like a pretty obvious follow-up.

Before the election there was a lot of debate about how the constitutional amendment would affect local governments’ ability to provide domestic partner benefits, domestic violence protection orders, the business climate, and unmarried couples’ ability to deal with family matters such as custody rights and hospital visitations. Why does it matter now? Well, because now that the marriage amendment — often called “Amendment One” — is part of the state constitution, LGBT folk still have to go to work, raise families and otherwise go about their daily lives.

And what’s changed?

Not much at all, apparently.

I’m a couple months behind on one development: Diane M. Juffras, an associate professor at the UNC School of Government, authored a bulletin offering the opinion that the marriage amendment “does not take away the authority of North Carolina local government employers to offer domestic partner benefits.”  

Greensboro is among nine local governments in North Carolina that provide domestic partner benefits. 

Some discussion about the implications of Juffras’ opinion can be found at Pam’s House Blend, the Independent Weekly’s Citizen blog. 

The contrast between rhetoric deployed by opponents in the run-up to the vote and the legal reality following the passage of the amendment is starkly drawn in a series of community law workshops hosted by the Asheville-based Campaign for Southern Equality. While other groups mobilized unsuccessfully to defeat the amendment at the polls, Campaign for Southern Equality is focused on providing legal workshops so that LGBT folks can effectively exercise their rights. The group also promotes positive narratives about LGBT folks and challenges discriminatory laws through direct actions such as the “We do” campaign. 

“Amendment One changes nothing,” Meghann Burke, a lawyer in private practice who serves as the volunteer team leader for the Campaign for Southern Equality, told an Asheville audience in July. “And I’ll say it again: Amendment One changes nothing. How many of you saw ads, or read something in the paper or received literature that gave you an opposite conclusion? I did. Now, that was part of campaign messaging. In any campaign you have to exercise whatever tools are available to you and use whatever tactics you think give you the best advantage for defeating a draconian proposition.” 

Burke went on to say in the presentation, which can be viewed in the video at the top of this page,  that the amendment was about something more primal. 

“I think we all feel it in our daily lives, and we know that our legislature proposed this amendment out of animus, out of bigotry, out of discrimination, hostile feelings towards our community. And we cannot understate what that means and what that is, but as an attorney, as a legal matter, Amendment One changes nothing,” she said. “There’s already a statute on the books that says Jasmine and I are not legally married… The constitutional amendment, or Amendment One, merely repeats what is already in the statute.” 

Almost every legal alarm raised about the amendment that gained currency in the run-up to the vote was laid out in document called Potential Legal Impact of the Proposed Domestic Legal Union Amendment to the North Carolina Constitution that was released last November and whose lead author was UNC School of Law professor Maxine Eichner. 

“In addition to prohibiting same-sex marriage, the amendment… would eliminate the domestic partner insurance benefits currently offered to their employees by a number of local governments, including Chapel Hill, Durham, Greensboro and Mecklenburg and Orange counties,” the document reads. 

That notion became an article of faith among amendment opponents. 

Greensboro at-large Councilwoman Nancy Vaughan cited an opinion issued by the UNC School of Government to support her vote in support of a resolution formally opposing the amendment in February. She said at the time that the UNC School of Government had advised that if the amendment passed the city could be subject to a legal challenge that would have a significant chance of success. 

And YES! Weekly repeated the assertion in an article published six days before the vote, warning that “companies and governments will no longer be allowed to offer same-sex partner benefits like healthcare and life insurance.” 

Burke tried to put to rest any worries that domestic partner benefits would be jeopardized by the amendment in her presentation in Asheville. 

“Domestic partner benefits — that was a big one,” she said. “If you got ’em, keep ’em. They’re still good. In the year 2013 the city of Charlotte will become the tenth municipality in the state of North Carolina to offer domestic partner benefits. Alright, so even after the passage of Amendment One cities are still contemplating and providing domestic partner benefits.” 

Among the loudest alarms sounded about the amendment was that it might be interpreted by a court to invalidate domestic violence protection orders for unmarried partners. 

“Domestic violence protective orders — there was a lot of attention on that largely because the campaign chose to take the attention off of the anti-LGBT animus and focus on harms to the broader community,” Burke told the Asheville audience. “And I think we can all agree that domestic violence is something we need to eradicate and fight against.” 

The concern about domestic violence protection orders was articulated in the document lead-authored by Eichner: “Given how courts have interpreted amendments in other states, it is very possible, however, that courts would interpret the amendment to bar the state from giving any protections to unmarried couples — straight or same-sex — based on relationships. This would… invalidate domestic violence protection orders for all victims who are in unmarried relationships.” 

The sentiment was repeated by Suzanne Reynolds, a law professor at Wake Forest University in Winston-Salem who is widely recognized as an expert on family law. Reynolds and Forsyth County Assistant District Attorney told the Winston-Salem City Council they were concerned the amendment could invalidate domestic violence protection orders for victims in unmarried relationships as part of a slate of speakers urging Winston-Salem to follow Greensboro’s lead in passing a resolution against the amendment. 

“Domestic violence protective orders are an important tool for domestic violence victims,” Burke told the Asheville audience in July. “And if you have one of those orders — still good. Still valid. Amendment One does nothing to undermine that.” 

A paper issued by the ACLU of North Carolina substantiates Burke’s assurance by describing how the issue has played out in other states. 

“Thirty states have constitutional amendments banning same-sex marriage,” the paper states. “Only two of them — Kansas and Ohio — have seen challenges to their domestic violence laws. In both states, the highest courts to consider the issue have upheld the domestic violence protections.” 

The November 2011 document lead-authored by Eichner argues that by the same logic that courts might interpret the amendment to invalidate domestic violence protection orders, they might also rule that the state is barred “from giving committed couples protections that help them order their relationships, including the right to determine the disposition of their deceased partner’s remains; visit their partner in the hospital in the event of a medical emergency; to make emergency medical decisions for their partner if their partner is incapacitated; and to make financial decisions for their partner if their partner is incapacitated.” 

Again, Burke’s post-referendum presentation contradicted the warning issued by the legal scholars. 

“Your wills are still good,” she said. “Amendment One does not change that. Advanced directives, health-care power of attorney, durable power of attorney, living wills — still good. Titles to jointly-held property, those of you who might hold property with your partner as joint owners with rights of survivorship, still valid.” 

The Campaign for Southern Equality has also presented its workshop on the legal ramifications of the marriage amendment in Winston-Salem, Asheboro and Charlotte. A workshop is scheduled for Saturday at 4 p.m. at Pilgrim United Church of Christ in Durham.