THIS POST HAS BEEN UPDATED on APRIL 27th
Two weeks ago I sent a proposed Op-Ed on the legal issues surrounding Amendment One to the News & Record. Due to the length of my piece, I was informed that it would likely not be published unless the word count was reduced.
So while the N&R has my permission to publish the piece should they decide to, I have decided to go ahead and post it here.
Still, the debate continues and largely among law professors as opposed to the family law specialists who actually practice law and file appeals on a daily basis. I submit that opinions on the legal effect of Amendment One on family law issues might be quite different if a survey of board certified family law specialists was conducted. Even then I imagine some politics would intrude, however I expect there would be a far less one-sided result.
Over on Doug Clark's blog, Professor Suzanne Reynolds of Wake Forest University continues the narrative regarding the adverse affect that she believes Amendment One might have on domestic violence laws. However, even within her piece she expresses skepticism about the validity that any such argument might actually have in the courtroom:
"I certainly hope that ALL the district court judges in the state who hear this argument will reject it, which seems a vain hope indeed. And I hope that when after some district court judges accept the argument, the appellate courts of this state will eventually reject it."
But like other professors who are trying to rally opposition to Amendment One, her concern is about the possibility- no matter how remote- of an adverse consequence stemming from enactment of this proposed law. Any District Court judge who interprets the law in the way Reynolds, et al fear would be engaging in activism to prove a political point because it is not a logical or reasonable interpretation. The question is whether such a desire to influence policy is more desirous than retaining one's seat, because any such ruling does carry with it some victims. This won't be the first time either. See e.g., Boseman v. Jarrell.1 Ultimately, the appellate courts would surely reject the argument.
The problem with such an argument is that it is disingenuous at its core. Law professors know as well as lawyers that ANY law can be implausibly stretched to support an argument. Ridiculousness is no stranger to the courtroom. Yet we don't hear Reynolds, Eichner, or any of the other professors signing on to the Amendment One opposition writing pieces about how terrible those laws MIGHT be in the hands of someone with a creative imagination.
I respect Professor Reynolds, but the rally by some law professors against this amendment on the basis of a parade of horrors as opposed to the substance of the amendment itself is rooted in politics, not law.
Professor Reynolds and those who have signed off on various papers in protest of Amendment One essentially argue that the 50B statutes require a "marriage-like" relationship for enforcement and that if Amendment One is passed anyone who is not in a "marriage-like" relationship will lose protection.
But Professor Reynolds effectively admitted that the "marriage-like" relationship standard for domestic violence statutes was abandoned when she published her 2008 supplement to Lee's Family Law. Lee's Family Law is considered the preeminient resource on North Carolina family law.
In the previous version, There were several paragraphs explaining how the law only applied to those in a "marriage-like" relationship. See 1 Suzanne Reynolds, Lee’s North Carolina Family Law, § 5.8 (5th ed. 1999).
But then the statute was changed, and in the 2008 update Reynolds deleted all of the language regarding a "marriage-like" relationship and replaced it with the current "personal relationship" standard, clearly indicating that a "marriage-like" relationship is not a requirement for issuance of a domestic violence order. Of course that was before Amendment One came along. See 1 Suzanne Reynolds, Lee’s North Carolina Family Law, § 5.58 (5th ed. Supp 2008).
Why does Professor Reynolds now revert back to or seem to endorse the credibility of the "marriage-like" relationship standard that she previously abandoned to argue her position on Amendment One ?
The reality is that law professors often engage in the kind of inquiry that leads them to propose what they believe the law should be, not what it actually is. Activism in academia is nothing new, and academia is dominated by liberals. I imagine that the political pressure on most college campuses to "do your part" to defeat Amendment One must be quite high.
Anyway, I will reiterate that Amendment One should be debated on its merits and not on far-fetched legal theories that are mere scare tactics in disguise. My challenge to debate any law professor in the state on this issue remains.
Below is the piece I submitted to the N&R with some updates since that submission:
To the Editor:
As the debate over Amendment One heats up, the deliberate misinformation and scare tactics regarding the amendment are becoming more widespread. Sadly, the public is being fed sound bites, not substance in many instances by the deployment of certain myths regarding the legal effect of the Amendment on other areas of the law.
This seems purposely designed to avoid a real debate on the core issue of the Amendment, which is whether citizens in North Carolina want to extend marriage rights to same-sex couples or establish civil unions.
Passage of the Amendment would prohibit the legislature- and more importantly, the courts from ever establishing such legal relationships. North Carolina currently does not allow either, so passage of the Amendment would not change existing law. However, it would change the ability of a court to nullify existing prohibitions against same-sex marriage as was done in California.
In that state, the public ultimately vetoed the California Supreme Court by amending the state Constitution. It appears that the legislature in North Carolina decided to preempt such a possibility by amending the Constitution before a court has the opportunity to rule on the issue.
You live, you learn.
Regardless, it is my own belief that this issue will ultimately be decided by the United States Supreme Court, and if they hold that there is a Constitutional right to same-sex marriage, then Amendment One would be nullified if passed. If they don’t find such a right, the Amendment would remain if passed and it would simply be an expression of the democratic will of the majority of the population in the state.
Those are the real issues that should be debated and discussed and ultimately I believe that how a person votes on the Amendment will be based- and should be based- on their opinion of same-sex marriage and civil unions, and not on myths such as the following:
Myth 1: Amendment One would eliminate or diminish domestic violence protections for unmarried persons even persons of the opposite sex.
False. Under current law, same sex couples already have no standing to seek a restraining order under N.C.G.S. § 50B-1(b)(1) and (2) because with regard to couples in a romantic relationship, the law only applies to married persons or persons of the opposite sex. Amendment One does nothing to change that.
However, this really doesn't mean anything because under N.C.G.S. § 50B-1(b)(5), anyone who is a "current or former household member" same-sex or not, may seek a 50B restraining order. The nature of the relationship between the parties beyond being current or former household members is irrelevant. A brother can seek a restraining order against his other brother the same way as one gay man could seek one against his gay partner with the only criteria being that they currently reside or have resided in the same household. Amendment One does nothing to change that. It is this provision more than any other that highlights the folly of the claims about Amendment One weakening domestic violence laws.
Further, Amendment One would not prohibit the legislature from extending additional protections to same-sex couples in the future because current law already does not require a person to be married nor does it require a LEGALLY recognized or established “union” for enforcement. It simply requires that the parties prove that they have a “personal relationship” that falls within the definitions in the statute whether legally established or recognized or not. N.C.G.S. 50B-1(b).
This definition extends beyond just married persons and dating relationships to roommates and even children. The latter three are presently not legally established or recognized “unions” either, yet they are protected. In fact, 50B covers "former spouses" as well. Certainly a "former spouse" isn't in a "domestic legal union" anymore. That legal union was legally dissolved by divorce. So by a plain reading, 50B currently protects the only "domestic legal union" recognized in North Carolina as well as other relationships that will NOT be considered domestic legal unions if Amendment One passes.
Defining something as a “personal relationship” which is what the current 50B law does is not creating or recognizing a “legal union”. In fact, the search for a definition of what constitutes a "domestic legal union" is a short one. Amendment One clearly provides that definition. Only marriages between one man and one woman are "domestic legal unions". All other relationships are not and will not be recognized as one. It is as simple as that.
If a “legal union” is a requirement to enforce the domestic violence laws, then they are already invalid as applied to everyone except married persons. Conversely, if a legal union is not a requirement for enforcement (which it is not) then an Amendment that prohibits certain legal unions would have NO EFFECT on the domestic violence laws.
It should also be noted that similar arguments were raised in response to Ohio’s law against same-sex marriage and civil unions. The Ohio Supreme Court in State v. Carswell ruled that the domestic violence laws in that state were not altered in any way by the prohibition against same-sex marriage or a union that “approximates” marriage. In that case, the Court employed much of the same reasoning and held that the domestic violence law did not hinge on the legal status of the parties to each other, but on the factual relationship between the parties. There is no reason to believe the outcome would be any different in North Carolina.
Myth 2: Amendment One will affect custodial and visitation rights of unmarried parents.
False. The right to custody of a child is protected under the United States Constitution and North Carolina Constitution. An amendment to the North Carolina Constitution does not veto federal Constitutional protections.
But most importantly the right to custody and visitation is NOT BASED ON THE RELATIONSHIP BETWEEN THE PARENTS, but instead is based on the relationship between parent and child. Amendment One has no effect on that relationship.
In fact, our Court of Appeals has awarded custodial rights to a non-biological parent in a same-sex relationship recently in the case of Mason v. Dwinnell.2 That case did not hinge on the relationship between the same-sex couple, but instead on the relationship of each party to the child. The rule in Mason was followed by the North Carolina Supreme Court in Boseman v. Jarrell. The rationale behind the decision in Mason would not be affected by Amendment One because the parties relationship was not marital nor was it a legally established or recognized “union”.
Custodial rights can also be obtained through adoption, but the Amendment doesn’t change the status quo which already does not allow for non-married couples, same-sex or not, to jointly adopt a child and thus being able to establish legal rights for BOTH parties as non-biological parents by virtue of the adoption alone. Amendment One would not prohibit legislation in the future that would permit adoption by same-sex couples. The legislature could do this by simply eliminating the marriage requirement for adoptions by more than one person. But again, Amendment One does not change the law in this area either way.
Myth 3: Same-sex couples will be denied benefits that they currently have if Amendment One passes.
This would only be true if those benefits were based on marriage or a legally established “domestic union”. Since North Carolina currently has no same-sex marriage or legally established “domestic union” other than marriage between persons of the opposite sex, then any current benefits cannot be based on either of those relationships. Thus, even if those relationships are prohibited from legal recognition, there would be no effect on these benefits because the legal relationship was never required in the first place to obtain them.
Further, the Amendment plainly states that private individuals, including companies, can contract for to extend benefits to whomever they wish.
Granted, when it comes to government employees the outcome is less clear. However, like the domestic violence laws, public employee benefits appear to be based on factual relationships rather than “legal” ones and do not “establish” “legal” “unions” as would be prohibited by Amendment One. Unless there is a current state law that only permits the extension of benefits to “established” or “recognized” “unions”, Amendment One would have no effect on them.
Finally, there would be nothing preventing the state legislature from extending the definition of “dependent” in such a manner as to include relationships between two people who are unmarried (already NOT a “legally” “established” or “recognized” “union”) regardless of whether they are of the same sex or not. Similar to the domestic violence discussion, the extension of benefits does not rely on legally established or recognized unions, but on factually established relationships. For example, benefits could be extended to any person who has resided in the household for a certain period of time. Such a policy would not establish or recognize any “legal” “union” in violation of Amendment One.
The debate over Amendment One is important with valid points from both sides that should be considered before voting. However, it should be debated on the merits and not misinformation and scare tactics.
The media must be responsible as well. Too often media reports on this subject will include a passage such as “some legal experts say the Amendment will reduce domestic violence protections” etc. without any real explanation of the actual argument. Whenever someone is quoted as an “expert” rendering an opinion on the effect of Amendment One, the media owes it to their readers to ask what qualifies the person as an “expert”, what field are they an “expert” in, what their motivations may be, and most importantly- they should be asked to explain their conclusions by applying the actual law to the facts just as attorneys are required to do in courtrooms.
In the final analysis, those who favor the Amendment appear more inclined to tackle the issue head on for better or for worse, which usually comes down to religious and moral judgments or conservative arguments against radical change. Meanwhile, it appears that opponents are really arguing against the Amendment because it will maintain the status quo and prevent future changes to the marriage laws of North Carolina with regard to same-sex relationships. In other words, they fear the Amendment will do precisely what it is intended to do. But passage or defeat by all means necessary, including intellectual dishonesty and propaganda is no way to have a debate over such an important issue.
Samuel S. Spagnola
Board Certified Specialist in Family Law
1 "The record shows that this new form of judicially-created adoption may have been available only in Durham County and not available in the other counties of North Carolina..."
2 The Court wrote "We note that because this case involves questions of custody only, it does not present the issue whether a former domestic partner may acquire the status of a legal parent. Therefore, we decline to address the doctrine of parent by estoppel adopted in other jurisdictions. Likewise, we find immaterial Dwinnell's arguments that she and Mason could not marry, and Mason could not adopt the child under North Carolina law.
We cannot improve on the Pennsylvania Supreme Court's explanation as to why “ the nature of the relationship” has no legal significance to the issues of custody and visitation: “The ability to marry the biological parent and the ability to adopt the subject child have never been and are not now factors in determining whether the third party assumed a parental status and discharged parental duties." Mason v. Dwinnell, No. COA07-176 (2008)