Why North Carolina Needs a Marriage Amendment

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Why North Carolina Needs a Marriage Amendment

Special Analysis - March 5, 2005

On March 22, 2004 a homosexual couple in Durham sought a marriage license from the Durham County Register of Deeds. Upon being denied the license, the two men sued in District Court in an attempt to force the County to grant the license. After this lawsuit was dismissed, the two men expressed their intentions to file a similar suit in Superior Court.

Also in March 2004, two homosexual couples in Asheville approached the Buncombe County Register of Deeds and asked to be married.

On May 5, 2004 a homosexual couple in Charlotte applied for and were denied a marriage license in Mecklenburg County.

On May 17, 2004, in response to an order from the state’s Supreme Judicial Court, Massachusetts began issuing marriage licenses to same-sex couples.

CHALLENGES TO NORTH CAROLINA’S MARRIAGE LAWS: North Carolina’s existing marriage laws are very clear:

“A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry” (NC General Statute 51-1)

“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.” (NC General Statute 51-1.2)

Despite the clarity of our marriage statutes, several same-sex couples have sought to gain legal recognition for their relationships, and one of these couples has challenged our marriage laws in court. Although this lawsuit altogether ignored NC General Statutes 51-1 and 51-1.2, which define marriage as the union of a male and a female, similar legal challenges are likely to be made in the future.

Of greater immediate concern, however, is the issuance of marriage licenses to same-sex couples by the State of Massachusetts. As a result of this action, every state in the nation should be prepared to face lawsuits by same-sex couples who obtain marriage licenses in Massachusetts, move to other states, and demand the same recognition and status. It is highly likely that lawsuits will be filed in both state and federal courts challenging the constitutionality of state and federal laws that define marriage as between a man and a woman.

THE STATE MARRIAGE AMENDMENT: The only way to protect North Carolina and our strong marriage laws from legal attacks against the institution of marriage is to amend the State Constitution. Legislation has been introduced in the North Carolina General Assembly to do just that. Senate Bill 8—Defense of Marriage, sponsored by Senators Jim Forrester (R-Gaston) and Fred Smith (R-Johnston) and House Bill 55—Defense of Marriage, sponsored by Representatives Jeff Barnhart (R-Cabarrus), Jim Crawford (D-Granville), Dewey Hill (D-Columbus) and Tim Moore (R-Cleveland) proposes the following amendment to Article 14 of the North Carolina Constitution.

“Marriage is the union of one man and one woman at one time. This is the only marriage that shall be recognized as valid in this State. The uniting of two persons of the same sex or the uniting of more than two persons of any sex in a marriage, civil union, domestic partnership, or other similar relationship within or outside of this State shall not be valid or recognized in this State. This constitution shall not be construed to require that marital status or the rights, privileges, benefits or other legal incidents of marriage be conferred upon unmarried individuals or groups."

Each sentence of the amendment serves a critical purpose. The first two sentences are necessary to specify that only the union of one man and one woman at one time constitutes a valid marriage in North Carolina. The third sentence is necessary to defend against legal challenges from within the state as well as legal challenges resulting from marital recognition granted outside of the state. Sentence three, along with sentence one, also make it clear that bigamy and polygamy are prohibited. The fourth sentence is necessary to clarify that neither state courts nor the General Assembly can assert that the North Carolina Constitution requires the recognition of same-sex marriages or a “substitute” form of marriage, such as civil unions, as legal and valid in North Carolina.

WHY IS THE MARRIAGE AMENDMENT NECESSARY? Some lawmakers have told us they think our existing laws are strong enough, and that we don’t need to amend the Constitution in order to protect marriage. Fortunately, North Carolina’s marriage statutes are strong, but they are not immune from lawsuits, as we have seen already. Future legal challenges will be fueled by court decisions by activist judges in other states, and lawyers for homosexual couples will “judge shop” in an attempt to find a friendly venue in North Carolina for a lawsuit seeking to overturn our marriage laws.

Amending the North Carolina Constitution in the manner proposed above will provide the strongest support and protection for our existing marriage laws and the greatest defense against legal efforts to redefine marriage in North Carolina.