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If passed, amendment will create a legal muddle – for a while

David Donovan//April 17, 2012

If passed, amendment will create a legal muddle – for a while

David Donovan//April 17, 2012

“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.”

That’s the exact language of a proposed constitutional amendment North Carolina voters will consider on May 8. But family law attorneys across the state, as they attempt to advise their clients about the amendment’s possible impacts, are struggling to predict how the courts will interpret a term that has never been used in any existing North Carolina statutes or case law.

“A ‘domestic legal union’ has never been defined in North Carolina or any other state,” said Sarah Brady, a family law attorney with James, McElroy and Diehl in Charlotte. “[Amendment One] has a more general, vague language that is a lot broader than that it just bans gay marriage.”

Legal confusion regarding Amendment OneThe official explanation provided to voters by the state’s Constitutional Amendments Publication Commission doesn’t provide much clarity, either. According to the commission, “There is debate among legal experts about how this proposed constitutional amendment may impact North Carolina law as it relates to unmarried couples of same or opposite sex and same sex couples legally married in another state, particularly in regard to employment-related benefits for domestic partners; domestic violence laws; child custody and visitation rights; and end-of-life arrangements. The courts will ultimately make those decisions.”

And that’s from the people whose job it is to explain constitutional amendments, leaving the typical family law attorney very much in the dark.

Because North Carolina courts have never had to interpret the specific language used in the amendment before, family law attorneys have looked for guidance from the case law in other states. Currently, 29 states have constitutional amendments prohibiting same-sex marriage, but the language in many of those amendments differs significantly from the one proposed in North Carolina.

The proposed North Carolina amendment most closely resembles the language used in Idaho’s same-sex marriage amendment. But because Idaho courts have yet to define the term “domestic legal union,” the scope of how the amendment will be applied in that state remains unclear, according to research by family law professors at the University of North Carolina School of Law.

“I think you’re looking at about a thousand possible ramifications, and I think it’s just guesswork as to which ones might happen. I think that it would be the task of the appellate court to take many years to weave their way around all the issues that might be created by this,” said L. Stanley Brown, a family law attorney with Hamilton, Stephens, Steele & Martin in Charlotte and a former judge.

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