Courts

Family North Carolina Magazine—January/February 2009

by Tami Fitzgerald

Protect Marriage in North Carolina:

Society Benefits from Marriage Between a Man and a Woman

by Tami Fitzgerald, J.D.

In North Carolina, marriage has always been defined by church doctrine. During North Carolina’s colonial days and early statehood, marriage was governed by English common law. When marriage was finally codified into statute, “all regular ministers of the Gospel, of every denomination,” were authorized to perform marriages “according to the rites and ceremonies of their respective churches.”1 By authorizing only ministers of the Gospel to perform marriages according to their church’s rites and ceremonies, our State law recognized the validity of marriage to rest on the doctrine of the church. This is the historical basis of our current marriage statute, which defines marriage as:

“[T]he consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:

  1. a. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and
    b. With the consequent declaration by the minister or magistrate that the persons are husband and wife;…”2

It is quite clear that marriage has been defined in North Carolina law by church doctrine, which has been overwhelmingly determined by Biblical principle, since the majority of churches in North Carolina are Christian. Church doctrine has historically defined marriage as a solemn covenant entered into by only a male and a female, even in non-Christian churches. So, our state statute defining marriage between a “male and a female person” is merely a reflection of the ecclesiastical law.

This definition of traditional marriage as between only a man and a woman is not new. It is the historical definition—the one that has shaped the expectations for marriage since our state was founded under English law.

In addition to the statute authorizing marriage, North Carolina enacted a Defense of Marriage Act (DOMA) in 1996. It 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.”3 The DOMA protects the traditional definition of marriage in North Carolina because it prevents same-sex marriage from either being performed in North Carolina or being imported into North Carolina from other states. The federal DOMA, also enacted in 1996, provides an additional layer of support. It provides:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.4

Essentially, the federal DOMA prevents a same-sex couple that was “married” in a state or country that allows same-sex “marriage” from claiming the federal Constitution requires another state to recognize their ”union.”

A Target for Same-Sex "Marriage"

North Carolina’s two marriage statutes clearly protect the definition of marriage as being between a man and a woman, and the federal DOMA undergirds the State’s ability to determine its own definition of marriage. However, in spite of this statutory protection, North Carolina is a target for same-sex marriage.

Massachusetts became the first state to legalize same-sex “marriage” when its Supreme Judicial Court ruled in a 4-3 decision that excluding same-sex couples from marriage violated the Massachusetts Constitution.5 On May 17, 2004 Massachusetts began issuing marriage licenses to same-sex couples.6 Because Massachusetts had an old law preventing out-of-state couples who could not marry in their home state from marrying in Massachusetts, same-sex couples from North Carolina could not marry in Massachusetts, until July, 29, 2008 when the law was repealed.7 Gay and lesbian couples (including couples from North Carolina) can now marry in Massachusetts, regardless of their place of residence.

In May, 2008, the California Supreme Court followed suit, ruling in a 4-3 decision that limiting marriage to opposite-sex couples was a violation of the equal protection of the laws and due process clauses in the California Constitution.8 As a result, the State of California began issuing marriage licenses to same-sex couples on May 17, 2008.9 That came to an abrupt halt, however, on November 5, 2008, the day after the general election when voters in California approved Proposition 8 by a 52 percent to 48 percent margin. The passage of Proposition 8 amended the State Constitution to provide that, “Only marriage between a man and a woman” is valid in California.10 In the interim, approximately 18,000 same-sex couples were “married” in California, and their marital status is now in doubt. Three lawsuits have been filed challenging the passage of Proposition 8 as an illegal “revision” of the State’s Constitution, and the California Supreme Court has assumed original jurisdiction of the lawsuits and has consolidated them into one case. The Court will also rule on whether the marriage licenses already issued to same-sex couples by the State of California are valid or void.11

The most recent addition to the list of states that have redefined marriage to include same-sex couples is Connecticut. On October 10, 2008, the Supreme Court of Connecticut ruled by a 4–3 majority that, even though same-sex couples can form civil unions equal in rights and benefits to marriage, denying them the right to marry violates the State’s Constitution.12 In the general election on November 4th, a ballot measure to call a Constitutional Convention failed, destroying the only avenue for amending the Connecticut Constitution to reinstate a definition of marriage as between only a man and a woman. On November 12th, the State began issuing marriage licenses to same-sex couples.13

It should be noted that in each of these states, a narrow one-vote majority has defeated the traditional definition of marriage. The activist judges on these states’ Supreme Courts have redefined marriage by somehow connecting equal protection and due process to sexual orientation.

The impact of these recent events in Massachusetts and Connecticut and the pending outcome of legal challenges to Proposition 8 in California could be devastating for advocates of traditional marriage in North Carolina. Even though strong laws exist in North Carolina defining marriage as between “a male and female person” and prohibiting marriages “between individuals of the same gender,” North Carolina’s Constitution is bereft of a provision protecting traditional marriage. Without such a provision in the Constitution, any resident same-sex couple that has “married” in Massachusetts, California, or Connecticut could file suit in North Carolina seeking to force a court to redefine marriage to include same-sex couples. Such a scenario is not far-fetched. That very thing has happened in Massachusetts, California, and Connecticut, where courts have overridden the will of the people as expressed by their elected legislators and redefined marriage under their own radical understanding of equal protection and due process.

How to Protect Marriage in North Carolina.

The best way to protect marriage is to amend the North Carolina Constitution. A Marriage Amendment will define marriage as only between a man and a woman; prohibit other types of legal unions that imitate marriage, such as civil unions or domestic partnerships; and prohibit the legal recognition in North Carolina of same-sex marriages that are performed in other states. By amending the Constitution, the people of the State will be given the opportunity to preserve the age-old historical definition of marriage between a man and a woman in the State Constitution. A constitutional amendment will settle permanently the definition of marriage in North Carolina by putting it out of reach from a court or legislature that would seek to redefine marriage.

The North Carolina Constitution allows only two ways for amending the Constitution: (1) convention of the people, or (2) legislative initiation. The simplest procedure is to use the legislative initiation, which requires three-fifths of the members of each house of the General Assembly (72 in the House and 30 in the Senate) to adopt an act submitting the proposal to the voters for ratification or rejection. The Constitutional Amendment must then be adopted by a majority of voters. North Carolina does not have the option of placing a measure on the ballot by citizens’ popular initiative. The measure must be passed by the General Assembly.

Why North Carolina does not already have a Marriage Amendment

For the last five years, bills have been introduced in the North Carolina General Assembly seeking to get a Marriage Amendment on the ballot so the people of North Carolina can vote on it. Leaders of our General Assembly have refused to allow state lawmakers and the citizens of North Carolina the opportunity to vote on those bills, effectively killing them. A bill did reach the floor of the State House during the 2007 Session but was immediately re-referred by Speaker Joe Hackney to another House committee, where it died. These bills have received broad bipartisan support, garnering bill sponsorship from a majority of members of the North Carolina House and approximately one-third of the members of the North Carolina Senate. Sponsoring a bill virtually guarantees that the sponsor will vote in favor of the bill. In 2007, the “Defense of Marriage” bills were sponsored by 66 House members and 19 Senate members, and many more lawmakers, besides the sponsors of the bills, indicated they would vote in favor of a Marriage Amendment, if given the opportunity.

Legislators who oppose a Marriage Amendment say North Carolina’s DOMA is sufficient to protect the definition of marriage without amending the Constitution. That excuse is gravely mistaken, as judicially activist Supreme Courts in Massachusetts, California, and Connecticut has proven. An activist court in North Carolina could overturn our state’s DOMA, using our own Constitution to do it.

An additional obstacle to protecting marriage in our State Constitution is the political posturing of legislative leaders. Senate leadership tends to avoid recorded votes on issues they consider to be highly controversial, like the Marriage Amendment. The courage of our leaders is what is absolutely essential to protect the traditional family in North Carolina from being redefined. House leadership may be philosophically opposed to limiting marriage to one man and one woman, even though the overwhelming majority of likely voters in the State support the current definition of marriage between a man and a woman. In fact, homosexual activists have applauded and even given awards to legislative leaders who have refused to allow a vote on the Marriage Amendment. Furthermore, while protecting marriage is a non-partisan issue, some may attempt to make it seem so by arguing that having the question on the ballot could impact the outcome of certain elections, especially elections for the North Carolina General Assembly. This is precisely why marriage proponents are pushing hard for a vote in the fall of 2009—when the General Assembly is not up for election.

30 states in the nation have passed State Marriage Amendments. Florida, California, and Arizona passed Marriage Amendments in the last general election on November 4, 2008. North Carolina is the only state in the southern U.S. that has not passed a State Marriage Amendment. The 14 other southern states that have adopted State Marriage Amendments have done so with an average of 74 percent of the vote of the people.

Public opinion polls have shown an overwhelming majority of likely voters in North Carolina also favor passing a state Marriage Amendment defining marriage as between one man and one woman. Seventy-one percent of likely voters in North Carolina support a constitutional Marriage Amendment, while only 26 percent said they do not.14 In addition, 86 percent of likely African American voters said they support a constitutional Marriage Amendment, while only 13 percent oppose it.15 This high level of public support exists without any concerted media or education effort to date. If given the opportunity to vote on a State Marriage Amendment, North Carolinians would likely approve it by a huge majority.

Since lawmakers and legislative leaders have refused to act to protect marriage, the people of the State must demand that they listen to the will of the vast majority of North Carolinians. Legislators listen when their own constituents speak. Voters must demand that the General Assembly pass a bill placing the Marriage Amendment on the ballot in the fall of 2009 and allowing the people to vote to protect marriage. The people should be given the opportunity to vote on the Marriage Amendment, and they must hold their legislators accountable for allowing such a vote.

A Campaign to Protect Marriage

A Marriage Amendment campaign has been launched by a coalition of pastors, statewide policy groups, and ministries to require the General Assembly to allow citizens of the State to vote on a Marriage Amendment. The campaign is called “NC4Marriage.” It is designed to educate voters and encourage them to contact their elected lawmakers, urging the General Assembly to pass a bill placing an Amendment to the North Carolina Constitution on the ballot for a vote of the citizens. Ultimately, the goal is to garner a majority of the voters of the state to amend the North Carolina Constitution to define marriage as the union of one man and one woman. The campaign is designed to get the Marriage Amendment on the ballot in the November, 2009 election cycle.

From Manteo to Murphy, NC4Marriage is getting the message out about protecting marriage. Lawmakers must hear from you every time you have an opportunity. The most effective contact with a legislator is a personal visit. Visiting legislators while they are at home or in their legislative offices in Raleigh gives them an opportunity to put a face with an opinion and to hear your thoughts. Expressing your interest in the Marriage Amendment’s passage can also be effective when you see legislators at the gas station, at school and community functions, at the grocery store, and at community forums, among other places. The next most effective means of legislative contact is a phone call to your legislator telling them of your intense interest in getting the opportunity to vote on a Marriage Amendment. Handwritten letters are also effective, while email messages are somewhat effective but easily deleted. Hearing from pastors is especially meaningful to legislators, because they realize that a pastor represents hundreds or thousands of voters. Making no contact with your legislators is entirely ineffective; so let your voice be heard.

We invite you to participate in “Marriage Sunday” on February 22, 2009, when pastors across North Carolina are encouraged to preach about marriage and give their congregations information about the Marriage Amendment campaign. You are also encouraged to attend a Marriage Rally on Tuesday, March 3rd that is being sponsored by Return America, a cohort in the battle to protect marriage. Thousands of voters from across North Carolina will gather on that day on Halifax Mall at the State Capitol in Raleigh to show lawmakers the magnitude of public support for the Marriage Amendment. David Barton of Wallbuilders and David Gibbs of the Christian Law Foundation will be the speakers, so the event will be entertaining. But the main focus of the Marriage Rally is to encourage those who attend to visit their lawmakers and express the importance of a Marriage Amendment to North Carolina. The rally will be held in the shadow of the Legislative Building, where lawmakers can look down on the thousands of supporters for traditional marriage. Charter a bus and bring your entire church!

Most importantly, please visit the NC4Marriage website at www.NC4Marriage.org to join the Marriage campaign. As soon as you join the team, you will begin receiving email messages from the NC4Marriage campaign, giving you information about how and when to communicate with your legislators, community-wide events to support marriage, and opportunities for protecting marriage. Sample letters to legislators, talking points for calling your legislator, and contact information for your legislators will be available. Please visit the NC4Marriage website and join the team!


Endnotes:

  1. Rev. St. c. 71, cited in State v. Bray, 35 N.C. 289 (1852).
  2. N.C. Gen. Stat. § 51-1 (2008).
  3. N.C. Gen. Stat. § 51-1.2 (2008).
  4. 28 USCS § 1738C (2008).
  5. Goodridge v. Department of Public Health, 440 Mass. 309 (2003).
  6. DOMA Watch, Massachusetts, http://www.domawatch.org/stateissues/massachusetts/index.html.
  7. The Boston Globe, “House Passes Repeal of 1913 Marriage Law” (July 29, 2008). http://www.boston.com/news/local/breaking_news/2008/07/house_expected.html.
  8. In re Marriage Cases, S147999 San Francisco Co., JCCP No. 4365 (May 15, 2008).
  9. The L.A. Times, “L. A. Cardinal Mahoney, Other Church Leaders Again Reject Same-Sex Marriage” (June 17, 2008).
  10. California Const. Art. I, Section 7.5 (Proposition 8) (2008); L.A. Times, “Voters Approve Proposition 8 Banning Same-Sex Marriages” (Nov. 5, 2008) http://www.latimes.com/news/local/la-me-gaymarriage5-2008nov05,0,1545381.story.
  11. The Huffington Post, “Prop. 8 Gay Marriage Ban Heads to Supreme Court” (Nov. 20, 2008) http://www.huffingtonpost.com/2008/11/20/prop-8-gay-marriage-ban-h_n_145249.html.
  12. Kerrigan v. State, SC 17716 (Oct. 10, 2008).
  13. Yahoo News, “After Calif. Loss, Gays Get Right to Wed in Conn.” (Nov. 12, 2008) http://news.yahoo.com/s/ap/20081112/ap_on_re_us/gay_marriage; AOL News, “Gay Marriages Allowed in Connecticut” (Nov. 12, 2008) http://news.aol.com/article/gay-marriages-allowed-in-connecticut/241707.
  14. Civitas Institute, Monthly Poll (May, 2008).
  15. Civitas Institute, Monthly Poll (May, 2008).

Tami L. Fitzgerald is staff attorney with the North Carolina Family Policy Council.


Copyright © 2009. North Carolina Family Policy Council. All rights reserved.