Judging the Marriage Amendment

Family North Carolina Magazine—Sep/Oct 2007

By Bill Brooks

Why don’t we have a marriage amendment in North Carolina? That is the question I am most frequently asked as I travel around the state meeting with groups of pastors and citizens. I have to tell them the only realistic path to a constitutional amendment is for the General Assembly to pass a bill that places an amendment on the ballot. Even so, the leadership in the House and Senate have denied lawmakers, four years in-a-row, the chance to vote on marriage amendment bills, despite the fact that voters in 27 other states have already approved such measures. We are convinced that given the opportunity, a bipartisan super-majority of legislators would support such an amendment to the North Carolina Constitution, and that it would be approved overwhelmingly by voters.

The need for a marriage amendment in the Tar Heel State is more evident than ever, as a result of two recent events. First, in late August, a state judge in Iowa ruled the state’s defense of marriage act (DOMA) unconstitutional. North Carolina has a DOMA, and a good one. It 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.” Our law also states, “A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry...” An amendment would essentially place this language into the Constitution.

Our legislative leaders have said we do not need to amend our constitution because we have a strong DOMA and a clear definition of marriage. While that may be comforting to some, it does not reflect reality. As we have seen in Iowa, and in other states, a single judge can essentially redefine marriage by judicial interpretation. What makes us think it cannot happen here? A constitutional amendment is necessary to reinforce our existing laws and to remove from our legislature and state judges the power to redefine marriage.

This brings us to the second reason we need a marriage amendment. On August 24, Governor Mike Easley appointed Judge John Arrowood to fill a vacancy on the North Carolina Court of Appeals. This appointment drew little attention, because Arrowood was already serving as a special superior court judge—a position the Governor named Arrowood to just six months ago.

This appointment came to our attention when Equality North Carolina, a pro-homosexual advocacy organization, praised Easley for the Arrowood appointment, pointing out that Judge Arrowood had served on the board of Equality North Carolina since 2005 and as chairman of its political action committee (PAC) until he resigned to accept the superior court judicial appointment.

Did Governor Easley know Arrowood was a pro-homosexual activist? Certainly, Judge Arrowood was required to submit paperwork to the Governor’s office, or to the state judicial system outlining his qualifications and present and past organizational affiliations. If he was not, then our laws are woefully deficient.

This is meant not to question Judge Arrowood’s judicial competence. The appointment of a pro-homosexual activist, however, does raise a significant question regarding a potential conflict of interest. If Judge Arrowood, in fact, did serve on the board of an advocacy organization that lobbies the General Assembly on behalf of the “lesbian, gay, bisexual and transgender community,” and as chairman of Equality North Carolina’s PAC, the purpose of which is to direct funds to support candidates who agree with a pro-homosexual agenda, then it is not unreasonable to ask if such an individual would have the capability to be impartial, should a decision about North Carolina’s marriage laws or other related matters come before the court. Clearly, Judge Arrowood should recuse himself if he is faced with this circumstance.

This appointment also raises an issue about the process North Carolina uses to replace judges who resign mid-term. The governor has sole discretion to fill these positions. While judicial appointees, like Judge Arrowood, have to stand for election to retain their seat at the next statewide general election, these interim judges possess full power during their time on the bench—before they ever have to face the approval or disapproval of the voters. If Governor Easley was unaware of Judge Arrowood’s pro-homosexual activism, a confirmation or review process for judicial appointments could help bring such critical issues to light.

Why don’t we have a marriage amendment in North Carolina? Ask your lawmakers. When do we need one? The answer couldn’t be more apparent.

Bill Brooks is president and executive director of the North Carolina Family Policy Council.

Copyright © 2007. North Carolina Family Policy Council. All rights reserved.