NC Now A Gay Marriage Battleground State

Michael Bitzer

Editor’s Note: WFAE’s next Public Conversations event will address the proposed amendment to North Carolina’s constitution that defines marriage as only between a man and a woman.  Event details will be forthcoming at

Two critical events occurred last week that raises the recognition of North Carolina’s upcoming vote on a constitutional amendment regarding same-sex marriage.

A three-judge panel of the 9th Circuit Court of Appeals struck down California’s constitutional amendment banning same-sex marriage. The court rule the ban violates the equal protection clause of the 14th Amendment.

Then, one day later, Washington state lawmakers voted to legalize gay marriage.

North Carolinians will likely receive national attention regarding the issue of same-sex marriages with its May 8th constitutional amendment on the ballot.

While supporters and opponents are making their arguments, some background on both the state and national aspects of this controversial question is warranted.

The General Assembly passed legislation in 1996 that states 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.”

But opponents to same-sex marriage want the state to go further. The proposed amendment to the state constitution defines marriage as between one man and one woman.  North Carolina is the last southern state to vote on such a constitutional amendment.

According to the National Conference of State Legislatures, 30 states have revised their state constitutions to ban same-sex marriage, while 38 also have statutory laws defining the one-man/one-woman requirement in their general statutes.  Including the recent action in Washington State, 11 states allow same-sex marriages, whether instituted by judicial action or legislative means.

The two most famous instances of judicial actions, and ones that gay marriage opponents point to as the reason for the NC constitutional amendment, are Massachusetts and Iowa.  The supreme courts of both states ruled that banning same-sex couples from marriage violates their state’s constitutional guarantee of “equal protection of the law” — something that North Carolina’s constitution also ensures in Article I, Section 19.  Both state’s decisions were written by women serving as their state’s first female chief justices — and who were appointed by Republican governors.

A case in Colorado, though not about gay marriage, may give some indication of how the U.S. Supreme Court may rule on this controversial subject.  Several cities had sought to protect gay citizens from discrimination by passing local ordinances banning such practices.  In 1992, Colorado voters amended their state constitution, which said that local governments could not:

Enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

In overturning the Colorado amendment, the U.S. Supreme Court, in a 5-4 ruling with Justice Anthony Kennedy writing the majority’s opinion, held that this amendment violated the principle of equal protection under the law, by citing a 1973 case that held “if the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest” [emphasis in original].

Certainly, gay marriage opponents in North Carolina will argue that government has a legitimate rationale for codifying marriage as between opposite-genders, based on historical and religious principles.

The power of the U.S. Supreme Court to rule on state constitutional amendments will certainly be a factor when the case of California’s Proposition 8 comes before it.  By that point, North Carolinians will have had their say on whether to change the state’s governing document to constitutionally cement the language as well.

But as was the case with Colorado’s amendment, it may be up to the highest court in the land to determine if North Carolina’s and 30 other states’ language survives constitutional scrutiny.  And most likely, it will be Justice Anthony Kennedy — a Reagan appointee — who provides the crucial fifth, and deciding, vote.


1 Comment

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One response to “NC Now A Gay Marriage Battleground State

  1. Mike P.

    Interesting piece! A few thoughts:

    In Iowa, the court is essentially picked by a commission made up of lawyers from the bar association. In Iowa, twelve of the fifteen members were Democrats. This group picks a few judges, one of whom the governor must ‘appoint’- but of course to call this a ‘choice’ is to strain credulity.

    Also, if thirty-eight states had had constitutional amendments or laws just like Colorado’s amendment, the court would not have struck it down.

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