Marriage Laws in North Carolina
Why North Carolina is Not Protected under Current Marriage Laws

Family North Carolina Magazine—May/June 2009

By Paul Ribeiro

Objection: We don’t need a marriage amendment because we already have strong marriage laws.

Response: North Carolina’s strong marriage laws are not enough to protect it against a legal challenge in a state court. Several other states had strong marriage laws, too, but their laws were struck down by the courts. North Carolina’s marriage laws will be best protected by enactment of a Constitutional Amendment recognizing marriage as only the union between one man and one woman. Compare the following examples:

California

From 1977, California’s marriage statute read, “Marriage is a personal relation arising out of a civil contract between a man and a woman ...” (Cal. Family Code § 300). The law was clarified as to the validity of out-of-state same-sex marriages on March 7, 2000, when 61.4% of California voters approved Proposition 22, a ballot initiative: “Only marriage between a man and a woman is valid or recognized in California” (Id. § 308.5). Unlike the marriage statute, § 308.5 (which was called the California Defense of Marriage Act, or “DOMA”) could not be repealed or amended by the California State Legislature without the approval of the voters (see Cal. Const. art. II, § 10), making it—in theory—much stronger than the legislatively enacted statute.

On May 15, 2008, in In Re Marriage Cases, 183 P.3d 384, the California Supreme Court held both the marriage statute and Proposition 22 unconstitutional. The Court simply overruled both the legislatively enacted marriage statute and the voter initiative, stating,

“[T]he constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.”

The Court made its determination of constitutionality regardless of the fact that, in the Court’s own words, “the common law definition of marriage as the union of a man and a woman is constitutionally enshrined in the California Constitution by virtue of language in the 1849 and 1879 Constitutions that employed the terms ‘marriage,’ ‘wife,’ and ‘husband’ in providing constitutional protection for separate-property rights. …”

How then did the Court find the marriage statutes unconstitutional? By relying on the “legislative, administrative, and judicial” trend towards protecting sexual orientation. In 1969, the Court had reversed the Board of Education’s disciplinary actions against a teacher for homosexual conduct. In 1975, the Legislature repealed the state’s sodomy laws. In 1979, the Governor signed an Executive Order barring discrimination against state employees based on sexual orientation. And starting in 1999, the California Legislature had begun to adopt comprehensive domestic partnership legislation, granting same-sex couples virtually all of the same rights and privileges as married couples. As further evidence of the trend, the Court cited laws barring sexual orientation discrimination in the provision of services by any business establishment (Cal. Civil Code § 51); in employment (Cal. Gov’t Code § 12920); in housing (id. § 12955); in any program operated by, or that receives any financial assistance from, the state (id. § 11135); and in foster care and adoption (Cal. Welf. & Inst. Code § 16013). In Marriage Cases, the California Supreme Court relied on this trend as evidence of “explicit official recognition” of “equal legal status” regardless of sexual orientation, which the Court then construed to require recognition of a constitutional right to same-sex marriage.

Connecticut

The Connecticut marriage statute reads, “[T]he current public policy of the state of Connecticut is now limited to a marriage between a man and a woman” (Conn. Gen. Stat. § 45a-727a (2000)). In 2005, the State Legislature passed a law creating civil unions, in which it affirmed that marriage “is defined as the union of one man and one woman” (Id. § 46b-38nn). And the Connecticut Constitution lists “religion, race, color, ancestry, national origin, sex or physical or mental disability” as the specific classes protected by equal protection, excluding sexual orientation as a protected category. Conn. Const. Art. I § 20.

“Nevertheless, in Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (2008), the Connecticut Supreme Court held that laws restricting marriage to heterosexual couples violated same-sex couples’ state constitutional equal protection rights. As in California, the Connecticut high court arrived at its conclusion after describing the trend towards protecting sexual orientation. The State Legislature had passed laws allowing same-sex couples to adopt children, outlawing discrimination based on sexual orientation in employment, public accommodation, housing, etc., and of course instituting civil unions as a same-sex analog to civil marriage. The Court concluded, “These statutory provisions constitute an acknowledgment by the state that homosexual orientation is no more relevant to a person’s ability to perform and contribute to society than is heterosexual orientation.”

Iowa

In 1998, Iowa passed a DOMA, rewriting the marriage statute to read, “Only a marriage between a male and a female is valid.” Iowa Code § 595.2. Yet, in Varnum v. Brien, Case No, CV5965 (Iowa Dist. Ct. August 30, 2007), a state judge on summary judgment struck down the marriage statute under the Iowa Constitution. On April 3, 2009, the Iowa Supreme Court unanimously affirmed, holding the marriage statute unconstitutional under an equal protection analysis (2009 WL 874044).

The Iowa court applied “heightened” scrutiny, treating sexual orientation as a “suspect class.” To do so, the court considered four factors that have been used by the U.S. Supreme Court when evaluating whether a particular group is entitled to suspect class status: (1) a history of discrimination; (2) ability to contribute to society; (3) immutability of the characteristic; and (4) the political power of the subject class. While the court found all four factors supported treatment of sexual orientation as a suspect class, as to the first and second factors, the court relied directly on legislative enactments by the Iowa General Assembly. Specifically, the Court noted that the legislature had amended the Iowa Civil Rights Act to proscribe sexual-orientation-based discrimination in employment, public accommodation, housing, education, and credit practices (Iowa Code §§ 216.2-.18A (2007)); defined hate crimes to include certain offenses committed because of the victim’s sexual orientation (id. § 729A.1-.2 (1992)); prohibited “harassing or bullying” behavior in schools based on sexual orientation (id. § 280.28 (2007)); and required sex education in public schools be free of sexual-orientation bias (id. § 279.50 (2007)). The Court also cited “numerous state administrative regulations” protecting sexual orientation in education, public health, emergency medical services, social work, pharmacology, law enforcement, etc. for the proposition that “sexual orientation is not relevant to a person’s ability to contribute to society.”

North Carolina

North Carolina’s marriage statute reads: “A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry …” (N.C. Gen. Stat. § 51-1 (1908)). The law was clarified as to the validity of out-of-state same-sex marriages with the passage of a DOMA, which reads, “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” (Id. § 51-1.2 (1996)).

Advocates for same-sex marriage in North Carolina year after year back bills introduced in the General Assembly that would protect “sexual orientation” and “gender identity.” But sexual orientation protection is not the ultimate goal; as seen in the California, Connecticut, and Iowa court decisions, it is merely a stepping stone to same-sex marriage. The introduction of such language into state law would effectively give North Carolina courts the implicit “legislative blessing” they need to find North Carolina marriage laws unconstitutional. This Session, bills that would advance the goal of same-sex marriage include:

• HB 88 / SB 221—Healthy Youth Act
  
• HB 100—Conform State Law to Lawrence v. Texas
  
• HB 207—Safer Communities Act
  
• HB 548 / SB 526—School Violence Prevention Act
  
• HB 721 / SB 395—Carrboro/Housing Discrimination
  
• SB 843—Nondiscrimination in State Employment

Furthermore, there is already a trend to protect sexual orientation in administrative regulations and local ordinances:

• In 2003, Durham County and Orange County passed measures awarding domestic partner benefits to homosexual partners of county employees.
  
• Domestic partner benefits have also been available to town employees in Carrboro since 1994, in Chapel Hill since 1995, and to city employees in Durham since 2002.
  
• In 2004, the Guilford County Board of Education adopted a non-discrimination policy protecting “sexual orientation” and “gender identity/expression.”
  
• In 2005, the Mecklenburg County Board of Commissioners added “sexual orientation” as a protected class under its employment non-discrimination policy.
  
• In 2007, the State Personnel Commission voted to include “sexual orientation” as a protected class (while the rule was later overturned by the North Carolina Rules Review Commission, some are claiming the policy remains in effect).
  
• In 2008, the Charlotte Mecklenburg School Board adopted an anti-bullying policy protecting “sexual orientation” and “gender identity/expression.”
  
• Fifteen of sixteen campuses in the University of North Carolina have included “sexual orientation” in their non-discrimination policies. UNC has also begun to offer benefits to same-sex partners of faculty and students.

North Carolina courts are already open to granting unprecedented, same-sex rights that are without basis in the law. Recently, the North Carolina Court of Appeals granted joint legal custody of a minor to the biological mother of the child and her estranged lesbian partner (Mason v. Dwinnell, 660 S.E.2d 58 (N.C. Ct. App. 2008)). The Court accepted the parties’ stipulation that they had created a “family unit,” in a way that North Carolina had not previously recognized—a union between two lesbians, which would otherwise be illegal under North Carolina’s marriage laws. In arriving at its unanimous decision, the Court stated, “It is important to first observe that the factual context of this case—involving same-sex domestic partners—is immaterial to the proper analysis of the legal issues involved.”

The recent decisions of the California, Connecticut, and Iowa supreme courts illustrate how judges will look to a legislative trend to protect sexual orientation as justification for redefining marriage. In each case, so-called “strong marriage laws” had been democratically enacted to preserve traditional marriage. Nevertheless, in each case, the trend towards protecting sexual orientation trumped the marriage laws. None of those states had defined marriage in their constitution, and as a result, the courts used the legislative trend towards protecting sexual orientation to infer a fundamental constitutional right to same-sex marriage.