On May 8, 2012, North Carolinians will vote on whether to add the following language to the Constitution of North Carolina:
Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.
Meanings often change with times. The meaning of a word changes when people use it in a new and different way.
Gay. Fifty years ago, if I told you I was gay, it would mean something quite different than what it means to people today.
Word usage by people determines new meanings.
It’s a word. But it is also a civil, legal and religious institution. I support the NC Marriage Amendment because I believe the legal and civil purpose for the institution of marriage is to protect and encourage the lifelong commitment between one man and one woman to raise a family. Marriage is the institution designed for the creation and nurturing of children.
I will offer the following four points:
1. Some say that we do not need the Marriage Amendment because it already reflects the status of state and federal statutory law. However, I believe that the Marriage Amendment is necessary to ensure that marriage is defined by the people of North Carolina, and not by a handful of judges. As a Constitutional amendment, the people of North Carolina would directly control the meaning and purpose of this institution.
2. There are two views of marriage in this debate – the traditional view that the institution of marriage is the lifelong commitment between a man and a woman to create, sustain and raise a family. The competing view purposes the institution for adults to express and validate lifestyle choices. Some have characterized this debate as “child centric” versus “adult centric” views on marriage or whether the institution is tied to promoting procreation.
3. The law is normative. How you define the purpose for the institution of marriage has consequences. When the institution of marriage is no longer about a lifelong commitment to family and children – it stops functioning to produce commitment, family and children. Accordingly, the countries that have been progressively redefining marriage to be about adult preferences, marriage and reproduction rates are plummeting to dangerously low numbers. I find merit to the concerns expressed by some that the West is committing societal suicide by demographics.
4. The numerous and mutating objections about the Marriage Amendment causing harm to families, business and domestic violence protections are disingenuous and ignore what has happened in the 29 other states that have amended their constitutions to ban gay marriage. Critics have failed to put forward credible evidence of these threatened harms occurring in these numerous states over the past several years.
This brings us to the first issue with the Marriage Amendment –
I. Is the Marriage Amendment necessary?
YES. American’s have not redefined the word nor the institution of marriage. The effort to redefine marriage has been spearheaded by lawyers, the legal academic elite and a handful of judges.
Institutions and morals can change with times. When morals change, the law often changes to reflect the new values. But there’s no evidence the meaning of the word has changed through popular usage nor the institution.
The black letter dictionary on law – Black’s Law Dictionary defines marriage as the legal union of one man and one woman as husband and wife. The second edition of the Oxford American Dictionary is the most recent, comprehensive lexical analysis of American English. Completed in 2005, it defines marriage as the union between a man and a woman.
Similarly, our current statutes reflect the view that marriage is between a man and a woman. The federal Defense of Marriage Act, signed into law by President Clinton states that “’marriage” means only a legal union between one man and one woman as husband and wife …) 1 USC § 7. North Carolina General Statute § 51-1.2 establishes that same sex marriages are not valid in North Carolina.
However, the force for changing the definition of marriage to include gay marriage was a handful of judges and the power of their courts. Eight states recognize homosexual marriages – the first three States in our Republic to do so – were the result of judicial decree.
Massachusetts: May 17, 2004, Court Order
Connecticut: Nov. 12, 2008, Court Order
Iowa: April 24, 2009, Court Order
Vermont: Sept. 1, 2009, Legislation
New York: June 24, 2011, Legislation
New Hampshire: Jan. 1, 2010, Legislation
Washington: Feb. 14, 2012, Legislation
Maryland: passed Mar. 1, 2012; effective Jan. 1, 2013, Legislation
This issue of marriage should be resolved by the people of North Carolina and not by attorneys or judicial decree. Through the legislative process, only five states have adopted homosexual marriage. In contrast 29 states have expressly prohibited homosexual marriage by Constitutional Amendment, and one state has passed a constitutional amendment authorizing the legislature to ban gay marriage.
10 States w/amendments that ban same-sex marriage: Alaska, Nevada, Mississippi, Missouri, Montana, Oregon, Colorado, Tennessee, Arizona, California – whose ballot initiative banning gay marriage is presently enjoined by the 9th Circuit
18 States w/amendments that ban same-sex marriage & civil unions but not other contracts: Nebraska, Arkansas, Georgia, Kentucky, Louisiana, North Dakota, Ohio, Oklahoma, Utah, Kansas, Texas, Alabama, Idaho, South Carolina, South Dakota, Wisconsin, Florida
2 States w/amendments that ban same-sex marriage, civil unions & related contracts: Michigan, Virginia
The people, not a judge, should decide whether we want to redefine what marriage means in North Carolina. If the Marriage Amendment is passed by the voters, then under state law, it can only be changed by a vote of the people.
II. The traditional versus the radical feminists and critical legal theorist’s theory of marriage
What’s the purpose for the institution of marriage? Why do we have “marriage”?
Is marriage primarily about family or about the individual’s liberty of lifestyle?
How you answer this should largely inform your views on whether you think the institution of marriage ought to include homosexual partners.
A. The traditional definition of marriage.
In his 1828 American Dictionary of the English Language, Noah Webster defined marriage as follows:
The act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life. Marriage is contract both civil and religious, by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. Marriage was instituted by God himself for the purpose of preventing promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children.
Webster’s definition reflects the traditional, Judeo-Christian perspective on marriage. This is the definition to which the people of the Carolinas have regulated the legal institution for over 343 years, since the original royal charter of the Province of Carolina. It is the view held uniformly throughout the West for the past 2000 years, until about 20 years ago.
Under this traditional view, marriage is a life long commitment between a man and a woman and is the foundation of the family. The family is the foundation of society as it is the family that creates, nurtures and raises the next generation. In this view, marriage is a sacred bond between the man and woman, in the presence of the family, friends and before God. The family is the foundation of any and every society.
The traditional view on marriage is premised on the idea that marriage and raising children are hard work that requires a lifetime of largely selfless commitment. The institution of marriage is to encourage and protect that union and labor for the benefit of the children.
The traditional view of marriage is also premised on the idea that society should promote and protect children being raised by their biological mothers and fathers who are committed and legally obligated to the well being of the family. There is great and ancient wisdom in this sentiment that we should all recognize. There is an overwhelming common pathology in our prisons and on our welfare roles: children raised without their fathers. Every year about one million more children are born into fatherless families. If we have learned any policy lesson well over the past 35 years, it is that for children living in single-parent homes, the odds of living in poverty are great. The policy implications of the increase in out-of-wedlock births are staggering. Marriage drops the probability of poverty by 80%.
Decades upon decades and hundreds if not thousands of empirical studies repeatedly demonstrate that children raised in a home with their married mother and father are substantially more healthy, wealthy, happy, and productive than their counterparts who were not.
Under the traditional view of marriage and family – the self is subordinated to the good of the family, particularly to the good of the children. Through the traditional institution of marriage, adult society protects, promotes and encourages a child’s right to be raised in a secure environment by his or her biological parents. The traditional view of marriage is child focused.
B. The radical feminist and critical legal theorist’s view of marriage.
The moral and legal theory behind the gay marriage effort finds its genesis in radical feminist and queer legal theory, the scholars of which are not laudatory of the traditional institution of marriage.
The motto of the feminist legal theorists and sexual revolutionaries of the late 60s was “smash monogamy”. Marriage was portrayed as an institution of suppression. Now, a generation later, they are fighting for homosexuals to be admitted into the legalized institution of monogamy – marriage.
This isn’t irony. It’s intentional. It’s a deliberate and ongoing effort to redefine how society views and lives marriage. From this radical perspective, the primary purpose of the institution of marriage is to fulfill and validate the individual’s liberty of lifestyle, be it heterosexual, gay, lesbian, transgender, polygamous, or polyamorous. Same sex marriage repurposes marriage from a child-focused institution to an institution focused on validating and facilitating the expressive desires of adults.
Under this individual liberty view of marriage, marriage exists as an institution through which adults live and express themselves on the issues of family and sex.
This radical individualism and radical egalitarianism is not something new. In fact, it’s not even new to the institution of marriage. Starting in the 1970s, we began redefining marriage. Now if marriage doesn’t make you happy, end it. The no fault divorce – divorce rates since the 1980s have vacillated between 40 to 50%.
Instead of a lifelong commitment to the family, we began changing the institution of marriage into a perishable commodity. The institution is still focused on family and children, but only for so long as we feel like it.
The youth of today are the first generations raised in the culture of disposable marriage. It also shouldn’t be surprising then for us to find that a majority of these youth attach little moral, legal, or emotional significance to the institution of marriage being extended to gay adults who want to “enjoy” this celebration of individual liberty.
I respectfully suggest, and having lived through it personally can testify, that this concept of marriage as a disposable commodity is not at all healthy for children nor for the future of this Republic.
The proper view of marriage in a healthy society is that marriage is a life long union between a man and woman for purposes of raising a family together. Marriage should remain child focused.
The underlying issue pertaining to the Marriage Amendment is not about homosexuals raising children. It’s about the purpose of marriage: is it an institution to celebrate individual liberty, or is it a lifelong commitment between a husband and wife for the purpose of raising their children?
Marriage should not be an institution for validating sexual preferences. The institution of same sex marriage would change the institution of marriage from a child-focused institution to an adult-centered institution.
Deliberately conceiving a child with the life plan that he or she will never have a relationship with his or her father is unjust and cruel to the child. Sex is not an irrelevant category for parenting. All else being equal, children do better when there is both a mother and father in the home dedicated to raising them. Further, there is already a crisis of absentee fathers in this country.
The West has led the world in redefining marriage to be about individual liberty interests. There has been a pronounced and undeniable impact, and it has not been family or child friendly.
III. There are serious consequences to redefining marriage to be about the wants and needs of adults.
When marriage stops being primarily about commitment to and raising a family, then marriage stops producing commitment and family.
We talk a lot about the importance of education for equipping the next generation for tomorrow. But there is a more important, a more fundamental imperative for our children’s future: the future first belongs to those that show up. Our Western liberal democracies are showing an ever fading interest in showing up for tomorrow. To the contrary, there is compelling evidence that we are in a demographic death spiral, particularly in Europe, which spiral appears to have started with our redefining the institution of marriage to be about the wants and needs of adults instead of the creation and sustenance of families, i.e. children.
The family in the West is crumbling and our reproductive rates are plummeting.
1. Netherlands in 2001 legalized gay marriage – the public debate there and lawsuits started in earnest in 1989. I was there in 1990. A funny thing happened. Starting in the 1990s, the institution of marriage began to crumble. In 1995, 15% of births were out of wedlock. By 2009, out of wedlock births increased to 41% of births;– fertility rate of 1.78 children per couple. A healthy country requires a fertility rate of 2.1 to sustain its population;
You cannot prove causality – however, free and open sexual expression and treating marriage as a validation of lifestyle choices has not produced more families or more children. The opposite has happened.
The law is normative. It counsels what is acceptable conduct. Gay marriage is about validating the liberty of lifestyle choices. When the institution of marriage is no longer about commitment, family and children – it stops functioning to produce commitment, family and children.
2. Belgium legalized homosexual marriage in 2003 – from 1995 to 2009, out of wedlock births increased from 18% to 42% of births out of wedlock; fertility rate of 1.65
3. Spain legalized homosexual marriage in 2005 – from 1995 to 2009 – out of wedlock births increased from 10% to 32%; fertility rate of 1.48
United States – we presently have a fertility rate of 2.06; our births out of wedlock were 41% in 2008 according to the CDC. Within that, for Asian’s the rate is 17% of births out of wedlock, 28% for whites, 52% for Hispanics, and 72% for blacks. Marriage and procreation are already under great duress in this country. The collapse of the institution in the United States coincides with the advent of the “no fault” divorce here. Making the institution of marriage even more adult and expressive centric will likely only lead to what we see in Europe – a collapsed institution and unsustainable level of procreation.
Procreation is the most fundamental function of a healthy society.
How do these fertility rates compare with countries that have not followed the lead to make marriage about adult expression? You need 2.1 fertility rate to sustain.
Brazil has a fertility rate of 2.2.
Mexico has a fertility rate of 2.5
India – 2.58 fertility rate
Egypt – 2.94 fertility rate
Pakistan – fertility rate 3.52
The nations that have openly and aggressively redefined marriage to be adult focused are perhaps not surprisingly, not having children. Examining the countries that have led the way on gay marriage, we find fertility rates from 1.48 to 1.78. That’s not family friendly.
To the contrary, the West is in a demographic death spiral. This will result in declining and aging populations; changed social relations, economic pressure from shrinking populations; and if given large immigration patterns with disproportionately higher birth rates persist (which is the case in Europe with robust fertility rates within the immigrant Muslim demographic) – we will have entirely changed cultures/societies within a few generations.
When the institution of marriage ceases to be about children, sustainable reproduction dies and you have a dying country.
The institution of the family is in duress across the very Western liberal democracies that have taken it upon themselves to redefine the purpose of marriage. We should not redefine the institution further. Marriage should be about the life long commitment of a man and a woman for the purposes of raising their biological children.
IV. Subterfuge Arguments
There have been numerous allegations that this Amendment would have countless unanticipated ramifications that would hurt children and families.
Most of these claims lack merit.
1. The Amendment cannot be both unnecessary and too dangerous? On the one hand, critics claim the Amendment is unnecessary because it doesn’t change the current status of the law. On the other hand, we’re told that the Amendment will harm heterosexual couples. If the amendment does not change the legal status quo, it should have no affect the day after enacted. The only difference the day after enactment is that the people of North Carolina will control the definition of marriage in North Carolina.
2. What’s the motive? This debate is not about the wording of the Amendment. The people raising these arguments do not want to fix imprecise wording. The wording is not imprecise. The people making these arguments object to the traditional notion of marriage being the institution through which one man and one woman raises a family. They object to the fundamental moral dispute. Not the wording of how it is enacted. They do not support a more carefully worded restriction.
3. We’re not the first. We’re looking at being the 31st State to pass a constitutional amendment limiting marriage to one man and one woman. The critics’ unintended consequences arguments might be more persuasive if we were the first state to pass such an Amendment. Or maybe if we were the second, third or even fourth state. We’re not. This Amendment was based on studying the 30 current amendments already on the books and enforced in other states. This is a well-worn path. From the 30 prior iterations, the critics have not produced any meaningful evidence of these harms. Our Amendment is nearly identical to Idaho’s amendment, which was passed in 2006. Critics cannot point to one adverse resulting event there. Our Amendment is far less restrictive than Virginia’s, yet again, there is not one example of harm there. Despite amendments in dozens of states for many years, there is no pattern or evidence of adverse, unintended consequences. Critics claims to the contrary are unsubstantiated.
4. Based on a 2011 report by the American Legislative Exchange Council, the Marriage Amendment should not adversely affect North Carolina’s economy. A 2011 report by the American Legislative Exchange Council ranked states by economic performance between 1999 and 2009 and by economic outlook. Eight of the top ten economically performing states have amendments banning homosexual marriage. None have legalized same-sex marriage, civil unions or domestic partnerships. Nine of the 10 states forecasted to have the poorest economic growth have legalized same-sex marriage, civil unions and/or domestic partnerships.
5. The amendment should not affect the enforcement of domestic violence laws. This is perhaps the most spurious of arguments. Out of 30 states having already amended their constitutions, the opponents rely upon an instance in Ohio where a trial court refused to enforce a domestic violence statute based on the Ohio Marriage Amendment. What the critics don’t tell you is that the trial court was reversed by the Ohio State Supreme Court in 2007. The critics rely upon a reversed decision that has nothing to do with North Carolina’s domestic violence statutes. For lawyers, the trial court’s decision is called bad precedent. See Ohio v. Carswell, 871 N.E.2d 547 (Ohio 2007)
6. The amendment will not nullify medical powers of attorney (MPOAs) wills and trusts if the parties are homosexual partners. Under G.S. 32A-18 “any competent person who is not engaged in providing health care to the principal for remuneration, and who is 18 years of age or older, may act as a health care agent.” The relationship between the patient and the designated agent does not matter. The intent of the testator and trustor is the “gold standard” in N.C. for interpreting wills and trusts. The amendment does not change the intent of the testator in either type of these instruments. The amendment explicitly states that it will not affect the rights of parties to enter into private contractual agreements.
7. The Marriage Amendment will not determine the custody and visitation rights of unmarried parents unless their behavior affects the child. Custody orders are based on the parent/child relationship, not on the domestic relationship between the parents. Courts have based custody and visitation on the “best interest of the child.” NCGS 50-13.2(2007) The sexual behavior of the party petitioning for custody or visitation is not determinative except as it affects the child. The “de facto parenting doctrine” was applied in 2010 in Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010). The Supreme Court refused to allow adoption to an unmarried same-sex partner but did award joint custody and visitation rights to that non-biological same-sex partner who had become a de facto parent to the child.
8. Homosexual couples will still be able to visit each other in the hospital. I don’t believe there are visitation restrictions currently against homosexual couples in North Carolina, and we have not legalized gay marriage or civil unions. Further, I don’t think a public or private hospital could refuse the designation of an unmarried partner and remain in Medicare. the final rule from the Center for Medicare and Medicaid Services regarding hospital visitation, which can be found here: http://www.gpo.gov/fdsys/pkg/FR-2010-11-19/pdf/2010-29194.pdf, is a broad provision that, from my reading of it, basically says that if you want to participate in Medicare you must inform patients of their right to receive visitors and the hospital may not limit those visitation rights based on sexual orientation. I haven’t been able to find specific statistics on the percentage of that accept Medicare funds, but it must be extremely high.
All citizens of North Carolina, gay and straight, are respected and welcomed and they have the right to private commitment ceremonies as they choose. But, they do not have the right to redefine marriage for our State.
Marriage is the foundation institution for creating, sustaining and raising the next generation. When the institution of marriage is no longer about a life long commitment to family and children – it stops functioning to produce commitment, family and children.
For these reasons, I will be voting in favor of the Marriage Amendment.
 “Queer Legal Theory” is not a term of derision but is the term of reference used within academia to refer to a particular school of jurisprudence and its scholars. The leading academic proponent of same sex marriage in North Carolina, UNC Law Professor Maxine Eichner is a well known legal feminist in academia who is well versed in critical legal theory. Her most acknowledged work is a review of feminist and queer legal theory with regard to “sexual citizenship.” See Eichner, Feminism, Queer Theory, and Sexual Citizenship. The paper can be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1451059