2012 North Carolina Amendment 1
North Carolina Amendment 1 is a partially overturned legislatively referred constitutional amendment in North Carolina that amended the Constitution of North Carolina to add ARTICLE XIV, Section 6, which prohibit the state from recognizing or performing same-sex marriages, civil unions or civil union equivalents by defining male–female marriage as "the only domestic legal union" considered valid or recognized in the state. It did not prohibit domestic partnerships in the state and also constitutionally protected same- and opposite-sex prenuptial agreements, which is the only part that is still in effect today.
On May 8, 2012, North Carolina voters approved the amendment, 61% to 39%, with a voter turnout of 35%. On May 23, 2012, the amendment took effect.
State law had already defined marriage as being between a man and a woman prior to its passage. Amendment 1 was the last state constitutional amendment banning same-sex marriage to be passed in the United States via voter referendum, as well as the shortest-lived: it was found unconstitutional in federal court in October 2014 after then-Attorney General Roy Cooper declined to further defend it.
ARTICLE XIV, Section 6 of the North Carolina Constitution remains a partially unconstitutional constitutional amendment to this day. In order to repeal the overturned parts of the constitution, either 60% of the North Carolina General Assembly must approve a bill putting another legislatively referred constitutional amendment on the ballot and that amendment must be approved by a majority of voters or convention-referred constitutional amendment during a state constitutional convention, which also requires a majority of voters approval.
Full text
ARTICLE XIV, Section 6 of the Constitution of North Carolina, as amended, states:Legislative approval
Senate Bill 514 was introduced in the 2011 legislative session North Carolina. Sponsored by Republican State Senator Peter Brunstetter, the bill was passed by the North Carolina General Assembly in September 2011.Final voting on SB 514 was as follows:
In the House:
- 75 Aye
- 42 No
- 2 Not Voting
- 1 Excused Absence
- 30 Aye
- 16 No
- 4 Excused Absences
Bill information
The long title of Senate Bill 514 is: "An Act to Amend the Constitution 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."The bill proposed to add a new section to article XIV, which covers miscellaneous provisions. The sections of the bill were:
- Section 1
- Section 2
- Section 3
- Sections 4 and 5
Effects
The amendment constitutionally banned same-sex marriages, which were never recognized by the state and was statutorily banned since 1996, and civil unions or civil union equivalents, which were never recognized by the state. North Carolina became the 30th US state to ban same-sex marriage in its constitution and 20th US state to ban civil unions or civil union equivalents in its constitution. This preempted the state judiciary from requiring the state to legally recognize same-sex marriages or civil unions or civil union equivalents and preempted the North Carolina General Assembly from enacting a statute legalizing same-sex marriages or civil unions or civil union equivalents. Another section of the amendment constitutionally protected same-sex and opposite-sex prenuptial agreements, which was already statutorily codified in the Uniform Premarital Agreement Act in 1987. Domestic partnerships in North Carolina, legal in 4 counties and 7 municipalities at the time, were unaffected by the amendment.Potential effects
In a study by Maxine Eichner, Barbara Fedders, Holning Lau, and Rachel Blunk of the University of North Carolina School of Law, the authors discussed how the wording in the proposed amendment could have legal implications beyond banning marriage between same-sex couples. A white paper authored by Lynn Buzzard, William A. Woodruff, and Gregory Wallace of Campbell Law School disagreed with many of those claims.Employee benefits
Some said that all unmarried couples, both same-sex and opposite-sex, and their children that are receiving domestic-partner benefits as public employees would no longer be eligible for those benefits under this amendment. The second sentence in the amendment sought to address this issue by continuing to allow private-party contracts between employees and employers. For example, a private company could agree to extend health benefits to employees and their partners. However, since "domestic legal union" was untested language in the courts, the issue was considered likely to face litigation to determine what the actual meaning would be and how it would be implemented.Legal protections
In addition to restricting benefits to couples in domestic partnerships, the amendment could have also stripped protections for unmarried couples such as domestic violence and stalking protections. If the courts had determined that the language used in the amendment invalidates protections for unmarried couples it could have harmed domestic-violence protections for that population. After passing a similar constitutional amendment in Ohio, several courts ruled that domestic violence protections did not apply to unmarried couples and cases were dismissed or told not to press charges. The courts could have determined that validation of unmarried couples domestic legal union status would violate the amendment. However, the counter argument was that North Carolina's domestic-violence statutes were better defined and included protections for unmarried couples.North Carolina Statute 50B-1, Domestic Violence, states:
Adoption and child-visitation protections were also in question. While North Carolina only allows adoption by one unmarried adult, there are cases where children are adopted by two unmarried adults in other states and are now living in North Carolina. Since those relationships would not have been recognized under Amendment One, there were potentially serious consequences. In Potential Legal Impacts of the Proposed Same Sex Marriage Amendment, the authors concluded that in child-custody disputes "judges may interpret as an expression of public policy against all non-marital relationships. This interpretation may have caused judges to view such relationships as having a per se negative impact on a child, and fashion custody orders accordingly. They also said that in custody disputes between a parent and non-parent, the courts could decide that one parent's relationship is impermissible since it would validate a domestic legal union other than heterosexual marriage. As with the other protections in question it seemed that the courts would have to decide what the actual interpretation and implementation will be in this area.
Other areas of protection that were under question included hospital visitation, emergency medicals decisions, and disposition of deceased partner's remains. Although there are legal documents that can help protect medical and financial security, these could have been contested in court based on the argument that they recognize a domestic legal union between the two parties. Issues in estate planning could have arisen through increased litigation contesting wills of unmarried individuals, particularly those in same-sex relationships. Again, the courts could have ruled that any recognition of a domestic legal union between unmarried partners would be unconstitutional and therefore rule those wills and trusts invalid.