Shields Against Domestic Violence and

Child Custody Are Also at Risk 

Editorial from the Charlotte Observer, March 2 ,2012

A state constitutional amendments panel met this week to “prepare an official explanation of the proposed Marriage Amendment (Session Law 2011-409) to the North Carolina Constitution that will be put before voters in the upcoming May 8 election.” But an explainer won’t be able to justify this wasteful and misguided legislation that bans same-sex marriage – a ban already in place by state law.

The panel’s explanation won’t appear on the ballot; lawmakers have already determined that wording: (for or against) “Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in the state.” The explanation, says the Secretary of State’s office, aims to explain “in simple and commonly used language” what the amendment is designed to do.

But voters will be largely on their own in finding out the true implications and potential pitfalls of this proposal. One place to look is a 27-page report ( three UNC law professors.

The report is an eye-opener on the amendment’s broad possible ramifications – for straight couples who are unmarried.

By barring the state from recognizing as legal any domestic union other than heterosexual marriage, the amendment’s “impact [goes] far beyond current N.C. law,” the professors say. It puts at risk protections enjoyed by heterosexual couples – young couples who delay marriage, middle-aged couples who’ve decided not to marry and elderly couples who’ve been married before and see no need to remarry late in life. These groups are 88 percent of unmarried cohabitant N.C. households, according to the 2010 Census.

Among the possible impacts of this bill on them? It could:

Invalidate domestic violence protections for all unmarried partners

Undercut existing child custody and visitation law

Undermine protections for disposition of a deceased partner’s remains, hospital visitations and emergency medical decision-making

Invalidate trusts and wills

House Majority Leader Paul Stam, author of the amendment, has pooh-poohed these concerns. He says the critics are trying to scatter dust in people’s eyes, to take (voters’) eyes off the ball.”

But Maxine Eichner, co-author of the paper, says these are issues that emerged in states with similar marriage amendments. North Carolina’s proposal is broader than most other states’ laws and poses more detriment to the rights of unmarried couples – straight or same-sex.

Stam doesn’t deny the bill makes illegal domestic-partnership benefits that some local governments already offer gay couples. But he said local governments can get around the amendment by allowing employees who have a reasonable connection (i.e. if they live together) to designate another person to receive benefits.

Eichner said a similar end-run was tried in Michigan for its marriage amendment but lawmakers passed a law prohibiting it. Eichner also notes that providing such benefits in the way Stam outlined, even if allowed, would be more expensive since more people would qualify.

The panel’s official explanation of the marriage amendment will be made available to the public through the media and county boards of election, officials say. But the concerns UNC legal experts outlined show that voters must educate themselves about broader possible implications.

It’s a shame this unwise and unnecessary amendment is even on the ballot. It wrongly writes discrimination into the state’s constitution – and it jeopardizes protections for straights as well as gays. Voters should reject this legislation.

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