Marriage at Risk:
Why We Are Overdue for a State Marriage Amendment
Family North Carolina MagazineJul/Aug 2008
by John L. Rustin and Burwell Stark
Since the 1800s, North Carolina law has recognized that “a valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife...”1
In 1996, the North Carolina General Assembly strengthened the state’s position on marriage when it passed a Defense of Marriage Act (DOMA) stating, “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.”2 Although these laws establish what many people would consider to be an ironclad policy in favor of traditional marriage, recent national events have demonstrated that strong marriage laws are no longer a sufficient barrier to the legalization of same-sex “marriages” and other relationships that imitate marriage.
On May 14, 2008, marriage received the latest blow when the California Supreme Court ruled, in a 4-3 decision, that “to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.”3 Shockingly, the ruling not only overturned California’s longstanding marriage law recognizing marriage as between a man and a woman, but it also overruled the expressed will of 61.4 percent of California voters who passed Proposition 22 in 2000 enacting that state’s DOMA.
What led the California court to create a constitutional right to same sex marriage? An examination of the California opinion reveals that the basis for the Court’s ruling hinged on whether the justices believed that an individual’s “sexual orientation” is a constitutionally protected status, like race or nationality. A portion of the 172-page opinion reads,
“Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientationlike a person’s race or genderdoes not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples."4
A Growing Trend
Sadly, the California decision is not the first time state courts and executives have issued rulings that could serve as the basis to undermine the traditional definition of marriage in America.
- In 2003, the Massachusetts Supreme Judicial Court ordered the Bay State to begin issuing marriage licenses to same-sex couples, which it began to do in May 2004.5
- In 2006, the New Jersey Supreme Court ruled that the New Jersey Legislature had to legalize “same-sex marriage” or its equivalent within six months.6 Before the end of that year, New Jersey lawmakers approved and Gov. Jon Corzine signed into law an act authorizing civil unions, making New Jersey the fourth state in the nation to recognize these marriage-like unions.7
- Most recently, in May 2008, New York Governor David Paterson issued a directive that all state agencies recognize same-sex “marriages” that are performed in other states and countries, essentially establishing same sex “marriage” in the Empire State by executive decree.8
An important factor that has come to light in the context of these actions related to marriage is “portability,” or whether a marriage license issued in one state to a same sex couple is valid in another state. The portability of same sex marriage licenses was not an issue in Massachusetts, because a 1913 Massachusetts law directs,
“No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.”9
Mitt Romney, then-governor of Massachusetts, invoked this law in 2004, prohibiting his state from issuing marriage licenses to same sex couples residing in states where a same sex marriage license would not be recognized. This action kept Massachusetts from transporting same-sex marriages to other states throughout the union.
Since California law does not contain a provision limiting portability of its marriage licenses, it is anticipated that same sex couples from across the nation will flock to California to obtain licenses and then return to their states of residence, including North Carolina. These couples are then likely to seek the rights, privileges and benefits typically reserved for married couples. If they are denied “equal rights,” it is only a matter of time before same sex couples inundate the courts with lawsuits demanding marriage recognition.
These nationwide legal attacks will certainly be focused on the most vulnerable targetsstates lacking a constitutionally protected definition of marriage. As such, North Carolina’s lack of a marriage amendment invites a lawsuit seeking to overturn our marriage statutes. How could this happen?
First of all, the language of California’s marriage law is strikingly similar to that of North Carolina’s. Section 300 of the California Family Code says, “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.”11 In addition, Proposition 22, California’s DOMA, enacted as Section 308.5 of the Family Code, clearly states, “Only marriage between a man and a woman is valid or recognized in California.”12
Just as in North Carolina, many citizens of the nation’s most populous state were led to believe their marriage laws gave them sufficient protection against any redefinition of marriage by the legislature or the courts, especially following the successful passage of Proposition 22 by a vote of the people. Those citizens were proven wrong.
Second, North Carolina remains the only state in the Southeastern United States that has failed to take action to define marriage in its state constitution. Every other state in the region, except Florida (which has the marriage question on the November 2008 ballot), has amended its constitution to protect the definition of marriage as the union of one man and one woman. In the 13 states south from Virginia and east from Texas that have passed marriage amendments (see map on page 10), voters have approved the measure by an average passage rate exceeding 75 percent.13
The lack of a constitutionally protected definition of marriage makes North Carolina a particularly vulnerable target for legal attacks, and these attacks could come to our state courts very soon.
When a lawsuit is filed, the future of marriage in the Tar Heel State will likely depend upon the judicial philosophy of a small number of judges. “But this is North Carolina … and that is California. Our courts would never do such a thing,” some have responded. A recent decision by our Court of Appeals, however, indicates that our judiciary may not be far behind the California court.
On May 6, 2008, the North Carolina Court of Appeals issued an opinion in Mason v. Dwinnell, a case dealing with the child custody rights of two lesbian women who were involved in an eight-year same sex relationship. During the time of that relationship, Dwinnell, the defendant in the case, was artificially inseminated and gave birth to a son. Several years later, after the two women became estranged, Mason filed a lawsuit in an attempt to gain joint legal and physical custody of the child.
In a unanimous decision by a three-judge panel, the North Carolina Court of Appeals ordered joint legal custody of the child to both women based on what the court determined to be “in the best interest of the child.” The introduction of the opinion, which is authored by Judge Martha Geer and joined by Judges Bryant and Steelman, states, “It is important to first observe that the factual context of this caseinvolving same sex domestic partnersis immaterial to the proper analysis of the legal issues involved.”14 Likewise, the conclusion of the opinion argues, “Although this appeal arises in the context of a same-sex domestic partnership, it involves only the constitutional standards applicable to all custody disputes between legal parents and third parties.”15
Essentially, the North Carolina courtlike the court in Californiahas determined that the “sexual orientation” of the parties involved in a legal dispute over matters relating to the raising and parenting of children and the establishment of a “family” is immaterial. Once a legal principle of this nature is established in case law, it does not require a significant leap to reach a point from which the court could determine that two individualsregardless of sexcompose a valid marriage relationship.
A Marriage Amendment
If it is possible for North Carolina’s marriage laws to be found unconstitutional, just as in California, then how can marriage be protected? The answer: add a clear definition of marriage to the North Carolina Constitution. Legislation to do just that has been introduced in the North Carolina General Assembly for five years in a row, but the legislative leadership has denied state lawmakers and the citizens of the state the opportunity to vote on the measure.
Because the State Marriage Amendment bill proposes to amend the Constitution, it would have to pass the state legislature by a three-fifths super majority vote (72 votes in the House and 30 votes in the Senate) and then obtain the approval of a simple majority (50 percent plus one) of the those voting in an election to approve the matter. The legislation proposes to add the following provision to our State Constitution:
“Sec. 6. Marriage. Marriage is the union of one man and one woman at one time. This is the only marriage that shall be recognized as valid in this State. The uniting of two persons of the same sex or the uniting of more than two persons of any sex in a marriage, civil union, domestic partnership, or other similar relationship within or outside of this State shall not be valid or recognized in this State. This Constitution shall not be construed to require that marital status or the rights, privileges, benefits, or other legal incidents of marriage be conferred upon unmarried individuals or groups.”
A May 2008 poll by the John William Pope Civitas Institute found support for a marriage amendment in North Carolina at 71 percent statewide, with 83 percent of African American voters supporting the measure.16
A Simple Solution
The opinion of the California Supreme Court has placed marriage in peril across America. States lacking a constitutionally protected definition of marriage remain particularly vulnerable to legal attacks, and, those attacks are almost certain to come. When they do, the judicial philosophy of the judges presiding over these cases, as well as recent decisions rendered by state courts, will undoubtedly play a role in the outcome.
Marriage is too important to leave to chance, especially when the solution to the problem is readily available. Legislation calling for a State Marriage Amendment in North Carolina is pending before the General Assembly, and the voters of the state could ratify the measure as early as the November 4 General Election. Our state leaders should not wait for a lawsuit to prompt them to act. Instead, they should take preemptive steps to provide the strongest protection availablea constitutional amendment defining marriage “as the union of one man and one woman at one time.”
John L. Rustin is vice president and director of government relations for the North Carolina Family Policy Council. Burwell Stark is a freelance researcher and writer.
1. North Carolina General Statute § 51-1.
2. North Carolina General Statute § 51-1.2.
3. In re Marriage Cases, S147999 (2008) 08 C.D.O.S. 5820, (hereafter Marriage Cases)
4. Marriage Cases, page 7.
5. Goodridge v Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).
6. Lewis v Harris, 908 A.2d 196 (N.J. 2006).
9. Massachusetts General Law, Chapter 207, Section 11.
10. California Family Code, Section 300(a).
11. California Family Code, Section 308.5.
13. Mason v. Dwinnell, No. COA07-176, May 6, 2008.
15. http://www.nccivitas.org/media/poll-results/may-2008-decisionmaker-poll (Question 23).
Copyright © 2008. North Carolina Family Policy Council. All rights reserved.