North Carolina voters may have just passed a change to the state’s constitution that designates marriage between a man and a woman as the only legally recognized union, but gay rights advocates are already considering options to counter the newly minted law.
After Amendment One received overwhelming approval in Tuesday’s statewide election, a spokesperson for the Coalition to Protect NC Families told TPM that the organization would now “look at all legal options and political options to overturn this amendment.” A day later, Jeremy Kennedy, the campaign manager for the Coalition, clarified his group’s official role going forward.
“As far as the Coalition is concerned, our job was to run the campaign and try to win the campaign,” Kennedy told TPM. “Our work is done.”
That doesn’t mean that other gay rights activists won’t be taking up the mantle. Stuart Campbell, executive director for the LGBT organization Equality NC, said that his organization will continue to lead efforts throughout the state to draw attention to Amendment One. In the next two weeks, Equality NC will begin conducting town halls in communities throughout the state to shed light on what passage of the measure will mean for North Carolinians.
“We will be educating the general public,” Campbell told TPM. “What polling showed is that voters were confused as to what this amendment will actually do.”
He has a point. Opponents were continually frustrated by misinformation surrounding Amendment One. Polls routinely showed that voters were ill-informed of the measure’s actual consequences, with many unaware that it is more than a simple ban on same-sex marriage — already illegal under a 1996 state statute — and that it would strip both gay and straight unmarried couples of legal recognition. The anti-amendment contingent often touted that as voters learned more about Amendment One, the less likely they were to support it. Campbell said that his organization will lead electoral efforts to couple with their informational campaign.
“We’re going to do our part to elect pro-equality leaders from either party,” Campbell said.
Regardless of who the state elects in November, some legal experts believe that state lawmakers will eventually be forced to confront the scope of Amendment One. Dr. Maxine Eichner, a professor at the University of North Carolina Law School and an opponent to the amendment, told TPM that the broad language of the law will limit what members of the general assembly can pass. For example, efforts to pass domestic violence protections for unmarried couples could be precluded under Amendment One.
“If the general assembly believes that it can’t pass those protections because of the amendment, at that point it will be time to test it in federal court,” Eichner said.
Eichner believes that legal challenges to Amendment One won’t come until the measure is interpreted by a judge. The language of the law, she said, has “not been tested in court.” When that happens, opponents to the amendment will have a better sense of how to challenge the law. Whenever that challenge comes, Eichner said it will occur in a federal court because Amendment One has overridden North Carolina’s guarantee of equal protection for unmarried couples. Instead, a challenge to the amendment will rest on the federal Equal Protection Clause, which is etched in the Fourteenth Amendment of the United States Constitution.
That may encourage LGBT advocates, who have seen federal courts adopt a broader interpretation of the Equal Protection Clause in recent years. In 2010, a U.S. District Court ruled that the Defense of Marriage Act (DOMA), a federal law passed under former President Bill Clinton, violates the Constitution’s guarantee of equal protection. Earlier this year, the U.S. Ninth Circuit Court of Appeals struck down California’s Proposition 8 also on equal protection grounds.
But while the LGBT advocates in North Carolina may be most emboldened by that ruling, Eichner cautioned that Amendment One does not mirror Proposition 8, which was passed by California voters in 2008. The Ninth Circuit Court ruled that in prohibiting same-sex marriage but permitting gay civil unions, Proposition 8 reduced the status of gay and lesbian couples by creating an unnecessary distinction. Amendment One, which bans both same-sex marriage and all civil unions, is obviously more far-reaching than Proposition 8, which could ironically make it more difficult to strike down than the California law.
“Our amendment is broader and applies to both same-sex and opposite-sex couples, which will raise some problems in federal court to show that it’s motivated by animus toward a sexual orientation,” Eichner said. “The dearth of rights we provide to same-sex couples will in some sense make this harder to challenge.”
In the near-term, both Campbell and Eichner expect supporters of the amendment to challenge local counties and municipalities that offer domestic partnership benefits to unmarried couples. Campbell acknowledged that Amendment One will provide “a very powerful tool” to eliminate domestic partnership benefits in the eight municipalities and counties where they are offered. In other words: this issue isn’t going anywhere.
“It’s a bit early, we don’t know what our full strategy might be, but we’re going to continue the fight,” Campbell said.
Tom Kludt is a newswriter for TPM. A former research intern and polling fellow for TPM, he lives and works in New York City. Tom graduated summa cum laude from the University of South Dakota in May of 2010 with a B.A. in Political Science and History. He can be reached at Tom (at) talkingpointsmemo.com.