Tag Archives: Gay Marriage

Judges Will Likely Have Final Say On Amendment One

With early voting under way, North Carolinians have a variety of offices and issues to resolve leading up to the May 8th primary election.  But the voting contest that seems to be attracting the most attention is the proposed amendment to the state constitution regarding marriage.

And when asked about the issue, depending on how the question is posed, North Carolinians seem to be of two minds: against gay marriage, while at the same time for legal recognition of civil unions for gay couples.  The key to either passage or defeat of this amendment is how the issue is ultimately worded and framed in voters’ minds.

Public Policy Polling has been tracking the public’s collective opinion about the issue. The amendment is designed to enshrine into the state’s governing document language that defines marriage as between one man and one woman, something that state law already does.

Starting in September of 2011, PPP asked about both same-sex marriage and the constitutional amendment supported by Republican legislators in the General Assembly.  In that month’s poll, 61 percent of North Carolina voters said that they wanted same-sex marriage to remain illegal, but that 55  percent would vote against the GOP’s constitutional amendment that would appear to ban marriage, civil unions, and domestic partnerships for gay couples.

A month later, PPP found that the marriage amendment garnered 61  percent of likely primary voters, with 80  percent of GOP likely primary voters, 52  percent of unaffiliated/independents, and 49  percent of likely Democratic primary voters expressing support for the amendment. 

Then, in December 2011, 58  percent of likely primary voters said that they would vote for the amendment, a three-point drop in support. 

Democrats at that time were supporting the amendment, but only by 4 points (47-43).  Among independents, support for the amendment remained the same at 52  percent. Republicans, not surprisingly, continued to be in strong favor of the amendment (77-16).

Come 2012, the amendment was bouncing around between 56 and 58 percent—until this week’s latest poll. Support is down to 54 percent. What’s especially interesting is that, for the first time, Democrats are solidly against the amendment, 56  percent, to only 38  percent supporting it. This opposition caps a transition in opinion among Democrats moving against the amendment.

But Democrats alone aren’t enough to defeat the amendment. As is typically the case, both in the nation and the state, a coalition of one party’s supporters and independent voters is needed to put together a winning vote, whether it is for a statewide office or on this issue.

An interesting development is the lack of information about the amendment’s intent.  This is why you are seeing more advertisements — especially from those opposing the amendment — coming out to frame the issue.

The main opposition to the amendment is by the “Coalition to Protect NC Families,” whose ads are here and here.  Recognizing that the moral perspective was dominated by the amendment’s supporters, opponents have taken to the airwaves to frame the issue in a different context.

Amendment opponents most likely got their inspiration from the official explanation regarding the amendment, found here. In the official explanation, there is uncertainty about the term “domestic legal union” as used in the proposed amendment. 

In their ads, opponents refer to various unresolved issues — such as the relationship between unmarried couples living together, domestic violence laws, child custody and visitation rights, and end-of-life arrangements.

When enshrining public policy into either governing documents, such as constitutions, or passing legislation into statutes, language has a distinct power in creating meaning and defining ideas.  And in our system of governance, it is the power of the courts to decide what language means.

While one of the main reasons cited by amendment supporters was to prevent “judicial activism” on the issue of gay marriage, it appears that these unresolved issues will have to be decided by the courts, even if the amendment passes.

As Alexis de Tocqueville observed in his journey through the new American republic in 1831, “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”

While North Carolina voters have the opportunity to voice their opinion one way or the other on this controversial issue, the likelihood is that judges will ultimately cast the deciding vote regarding the meaning of one simple, but complicated, word: Marriage.

Related- WFAE Public Conversations: Defining Marriage

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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 wfae.org.

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.

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