The voters of North Carolina resoundingly approved Amendment One on Tuesday night, a constitutional amendment defining marriage between one man and one woman as the only domestic legal union recognized in the state. There are a few curious aspects to the way this initiative has been reported.
For starters, unlike most legislative proposals, this one is almost never referred to by its proper name, the “Defense of Marriage Act.” Both parties love to give their legislation upbeat, sometimes ridiculously manipulative names, which the media is happy to use, when it’s a gigantic omnibus spending proposal called the “Puppies and Kittens Protection Act of 2012.” But the actual name of North Carolina’s amendment is rarely cited. It is almost invariably referred to as “the gay marriage ban,” even though opponents made a great show of warning that it would ban more than just gay marriage.
Another interesting aspect to media coverage is that the Act’s actual language is almost never quoted… even though it’s only 27 words long. It reads, in full: “Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.”
With the passage of this amendment, a new Section 6 was added to Article 14 of the North Carolina Constitution, which reads as follows: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”
Have you read that in any news report about this amendment, particularly the part I boldfaced? No, of course you haven’t. Instead, you read hysterical over-the-top claims from dishonest opponents of the amendment, who claimed it would somehow allow unmarried men to beat their live-in girlfriends with impunity. You read about all the terrible things this amendment “could,” or “might” “conceivably” “someday” “lead to.” You are strictly forbidden to discuss anything same-sex marriage might conceivably someday lead to.
The actual voters of North Carolina got to read the actual Amendment text when they voted for it, which is why they ignored the scaremongering tactics and passed it by a margin of 61 to 39 percent.
Another inaccurate impression conveyed by sloppy reporting is that the newly-minted Republican legislature hastily whipped up the Defense of Marriage Act right after the last election. In fact, North Carolina legislators have been trying to add such Constitutional language for a long time, but the Democrats always prevented it from reaching the ballot. If the situation was reversed, and this was an Act legalizing gay marriage that had been kept off the ballot by Republicans for years, you would certainly hear it reported that way.
North Carolina is now the 30th state to pass a constitutional ban against gay marriage, covering the entire South, and swing states like Virginia and Ohio. Eight states have legalized same-sex marriage, with the laws in Washington State and Maryland not yet in effect. It’s a legislative record that runs counter to media assurances that half of Americans are willing to accept same-sex marriage, although the two data points are not entirely contradictory – the people who signal acceptance of same-sex marriage in national polls are probably concentrated in the states that have legalized it.
Same-sex marriage was already illegal in North Carolina, but supporters of the new amendment worried that activist judges could overturn those laws. They were also concerned with the legal ramifications of same-sex marriages from other states being imported to North Carolina, such as same-sex couples relocating to the state and later seeking divorce.
Would this amendment have passed without the big national push for gay marriage? The commonly cited fear of activist judges striking down North Carolina’s existing laws is clearly a reaction to such judicial action occurring in other states. There was a growing acceptance of civil unions before the gay marriage movement kicked into overdrive. Now the lawyers of North Carolina will have to find legal mechanisms for such contracts. The actual language of Section 6 doesn’t seem as if it would make that impossible, or require the automatic and inevitable termination of insurance benefits for unmarried couples, an often cited fear of Amendment One opponents. There may well be “unanticipated consequences,” but that’s broadly true of every law, and never seems to bring a moment’s hesitation when billion- and trillion-dollar spending programs are on the table.
It remains to be seen if there will be any fallout for the Democratic National Convention, scheduled for September 3 -7 in Charlotte. The new amendment is compatible with gay marriage opponent Barack Obama’s stated position, but supposedly that position is “evolving” in subtle and mysterious ways. Administration figures, including the Vice President, seem to have been assigned to float trial balloons for an Obama embrace of gay marriage over the past week. At the very least, the Convention just got a little more interesting.
Update: Since originally posting this article, I've heard a few different stories about the exact language for Amendment One that was presented to voters. There was evidently some variation between the ballots produced by different voting districts.
A reader from North Carolina pointed out that the second sentence of the new Section 6 - the one I boldfaced above, which affirms the ability of private parties to enter into contracts with each other - was deliberately excluded from the ballot. This is very difficult to justify on the grounds of clarity or brevity, since the whole thing is only two sentences, and they are quite easy to read. It makes more sense if one presumes the intention was to make Amendment One look more draconian and intimidating, to scare voters away. Obviously, it didn't work.
