The Meaning and Potential Legal Effects of North Carolina’s Proposed Marriage Amendment

As previously noted, on May 8th, voters in North Carolina will decide whether to add to the State’s constitution a provisions that provides:

“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.”

Opponents claim that the proposed Amendment ultimately could deny domestic violence protections, child custody and visitation rights, and other legal benefits to thousands of unmarried couples in NC.  Their concerns are based on a legal analysis of the Amendment published by Maxine Eichner, a law professor at UNC School of Law and a leading academic on feminist and queer legal theory.

Campbell law professors Lynn Buzzard, William Woodruff, and Gregory Wallace have published a detailed reply to Eichner disputing the accuracy of her legal analysis and rejecting her stated concerns regarding how the Amendment might harm unmarried couples.  The Campbell professors’ purpose is to advance the public dialogue by addressing the flawed analysis of Eichner, whose misleading claims have provided the basis for the opposition’s ongoing scare campaign. The professors explain,

The reason for this paper is a narrow one. We do not endorse or oppose the proposed Amendment. There are thoughtful arguments on both sides, and we encourage a robust public debate about the Amendment. Our aim instead is to help clarify for North Carolina voters the Amendment’s legal meaning and likely effects. We believe that the Amendment debate has been distorted by concerns over certain legal consequences that are highly unlikely to occur. … We emphasize again that it is not up to us to tell anyone how to vote on the proposed Amendment. We offer this paper only as a modest attempt to explain the meaning and likely effects of the Amendment, should it pass. We believe that North Carolina voters are best served by having accurate legal information about the Amendment, so that they can properly consider the Amendment’s pros and cons and then vote their conscience.

The Campbell Law professors conclude that even if the Amendment passes, unmarried and same-sex couples still will be protected under domestic violence laws, would retain their current rights to child custody and visitation, and could continue to received public health insurance benefits.

The three professors state that because the Amendment applies to “legal unions” and not “relationships,” it bars only same-sex marriage and legal recognition of civil unions and domestic partnerships that resemble marriage unions.  The flaw in Eichner’s arguments is that she does not give the term “legal union” its proper legal effect in construing the Amendment. (Eichner admitted to me in debate that even without the “domestic legal union” clause, she still would not support a prohibition against same-sex marriage.)

The law professors’ full, detailed analysis can be found here:  The Meaning and Potential Legal Effects of North Carolina’s Proposed Marriage Amendment