Wake Forest Law professor explains the proposed Amendment One

Thanks to Kerry Sutton for posting this on FaceBook from Suzanne Reynolds, former judicial candidate and a professor at Wake Forest:

"Just posted the blog below to the Greensboro News and Record. Doug Clark was taking issue with the law professors who point out the dangers. Doug was relying on law professors (not family law law professors, by the way) who disagree with our conclusions. So

I posted the following. And please - get out the vote against Amendment One.
As usual, Doug, your comments are thoughtful. But family law professors from every law school in the state – including Campbell – agree with the UNC white paper on the dangers that Amendment One poses to domestic violence protection for unmarried couples.

The Campbell white paper ignores a critical distinction between the Ohio amendment and Amendment One. The Ohio Supreme Court eventually concluded that the Ohio amendment did not require denying domestic violence protection to a victim unmarried to her abuser. But the Ohio amendment merely prohibited THE STATE from CREATING a legal status for unmarried relationships. Amendment One is much more far-reaching.

Amendment One declares that the only “domestic legal union” that the state shall find “valid” or “recognize” is a marriage. In other words, all other “domestic unions” are “illegal,” or “not lawful.” Surely, lawyers who represent batterers who live with victims to whom they are not married will argue for this interpretation. I certainly hope that ALL the district court judges in the state who hear this argument will reject it, which seems a vain hope indeed.

And I hope that when after some district court judges accept the argument, the appellate courts of this state will eventually reject it. But how much domestic violence are we willing to tolerate until that happens – assuming the appellate courts reject the argument? There is no reason to tolerate any. Marriages in North Carolina have been limited to a man and a woman for 150 years. Fifteen years ago, we passed yet another marriage statute, making clear that if same sex couples marry in a state that permits their marriages and then move to North Carolina, North Carolina will not honor their marriages.

If Amendment One is defeated, which I fervently hope it will be, nothing changes. Marriages in North Carolina will continue to require the “consent of a man and a woman,” as they have for 150 years. If Amendment One passes, things change: unmarried families – some of whom are prohibited by the state from marrying – are a lot less safe. That’s why family law professors from every law school in the state – including Campbell – have joined this statement:

We are family law professors who teach at every law school in the state of North Carolina. We speak on behalf of ourselves, rather than our institutions. Based on our professional expertise, the language of the proposed North Carolina amendment is vague and untested, and threatens harms to a broad range of North Carolina families. The amendment is phrased more broadly than most similar amendments in other states, and would therefore likely be construed by courts more broadly than in other states.

The amendment would certainly ban same-sex marriages, civil unions, and domestic partnerships, and would very likely ban the domestic partnership health insurance benefits that a number of municipalities and counties currently offer to same- and opposite-sex unmarried couples.

It also threatens a range of other protections for unmarried partners and their children, including domestic violence protections and child custody law. We are aware that some law professors at Campbell Law School think otherwise. In our view, this disagreement simply underscores the fact that Amendment One is vaguely worded and that it is not possible to know how broadly it will eventually be construed.

April 20, 2012

Jean Cary
Professor of Law
Campbell Law School

Scott Sigman
Associate Professor
Charlotte School of Law

Katharine Bartlett
A. Kenneth Pye Professor of Law

Kathryn Bradley
Professor of the Practice of Law
Director of Legal Ethics

Carolyn McAllaster
Clinical Professor of Law
Director, Duke Legal Project
Duke Law School

Sonya Garza
Assistant Professor
Elon School of Law

Kia H. Vernon
Assistant Professor of Law
North Carolina Central School of Law

Maxine Eichner
Reef C. Ivey II Professor of Law

Holning S. Lau
Associate Professor
UNC School of Law

Jennifer Collins
Professor of Law

Suzanne Reynolds
Executive Associate Dean and Professor of Law
Wake Forest School of Law

Comments

"Amendment One declares that

"Amendment One declares that the only “domestic legal union” that the state shall find “valid” or “recognize” is a marriage. In other words, all other “domestic unions” are “illegal,” or “not lawful.”

This is an illogical extension of the amendment's text. To state that something is not valid as something else does not mean it is illegal. Marriage would be the only valid domestic legal union. That doesn't mean that people in other domestic unions are doing something illegal.

Why do we need to do anything?

Proponents are concerned that courts may begin interpreting existing law differently than it is currently being interpreted. That is no reason to mess with the State Constitution. If something isn't broken, why fix it? On the other hand, the danger of unintended (?) consequences is very real, as stated by these law professors.