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Amendment One’s vague language

David Donovan//April 20, 2012

Amendment One’s vague language

David Donovan//April 20, 2012

For more information regarding the legal issues surrounding Amendment One in North Carolina, please visit NCLW’s special in-depth Storify story on North Carolina’s Amendment One. Updated continually.

Of the 55 words in North Carolina’s proposed constitutional amendment on marriage, three carry much potential for confusion: “domestic legal union.”

As family law attorneys ponder how the amendment, if approved on May 8, would affect practice in areas like domestic violence, child custody and end-of-life decisions, they tend to focus on that phrase.

Sarah Brady, a family law attorney with James, McElroy and Diehl in Charlotte, said the term isn’t 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,” Brady said. “[Amendment One] has a more general, vague language. It’s a lot broader than that it just bans gay marriage.”

Some of the amendment’s effects are clear. The legislature could not grant same-sex couples a civil status similar to marriage, and local governments could no longer offer domestic partner insurance benefits.

Beyond that, its impact on a broad range of family law topics is decidedly muddled, and it could take the appellate court years to untangle the issues. Family law attorneys are prepared for a potential raft of cases interpreting and challenging the law

Charlotte attorney Sarah Brady: "domestic legal union" has never been defined. Photo by Neil Redmond.

“After the test case, we’ll know better what to do,” said Rebecca Perry, a family law attorney with McKinney Perry Coalter in Greensboro. “Until that time, I don’t know how lawyers can particularly help the situation. We’re just going to have to shoot in the dark and hope we hit something.”

Case law in other states offers little help. Currently, 29 states have amendments prohibiting same-sex marriage, but many differ significantly in language from Amendment One. Ten states have constitutions that limit marriage to heterosexual couples. Another 19 ban same-sex marriage and other types of same-sex unions. Most clearly intend to preclude legislatures from creating civil unions between same-sex couples closely approximating marriage.

Of those, only Idaho has language comparable to North Carolina’s, stating, “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.” Idaho courts, however, have not defined “domestic legal union” since the amendment was passed in 2006, so the scope of its application there remains unclear.

Michigan, Virginia and South Carolina also have unusually broad amendments. In Michigan, the Supreme Court held that the constitutional amendment precluded public employers from offering health insurance benefits to employees’ domestic partners.

Wording of the amendment“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.”

Changes to domestic violence laws

When Ohio passed a similar amendment in 2004, some judges ruled it invalidated domestic violence protections for all unmarried partners. At least 27 domestic violence convictions were dismissed or overturned. Nearly three years passed before the Ohio Supreme Court reinstated the convictions and restored protections to unmarried partners, according to research by law professors at the University of North Carolina School of Law.

The chaos in Ohio’s courts is especially troubling for attorneys who represent domestic violence victims. They worry that Amendment One could similarly weaken protections for domestic violence victims in both same-sex and opposite-sex couples if the victim is not married to the alleged abuser.

“I think that this amendment is very, very restrictively written, so you’re not going to know,” said Jonathan Breeden of Breeden Law Office in Garner. “Those states didn’t know, and we’re not going to know until courts start weighing in on how they want to interpret the amendment. I believe the courts are going to interpret the amendment very broadly.”

Currently, North Carolina’s domestic violence statute covers six classes of persons: current and former spouses, persons of opposite sex who live or have lived together, parents and children, people who have a child in common, current and former household members, and persons of opposite sex who are or have been in a dating relationship. Domestic law attorneys fear that some of these classes may become unconstitutional if courts say they violate the amendment’s prohibition on recognizing a “domestic legal union” besides marriage.

“People who’ve been in a relationship with a person of the opposite sex might not be able to get a protection order after the amendment passes,” Brady said.

Because North Carolina courts have never had to interpret the term “domestic legal union” before, attorneys cautioned that courts in different jurisdictions could hand out conflicting opinions until appellate courts weigh in.

“I’m hoping we can figure out a way around that, and I don’t know how the courts are going to treat that,” Breeden said. “That could be very scary because domestic violence is a very serious problem in North Carolina, and men and women who are victims of it need all the protection that they can get.”

Elderly could feel effects

Courts will have to sort out the detailsHere is the official explanation of Amendment One from the state’s Constitutional Amendments Publication Commission. The commission has three members: Secretary of State Elaine Marshall, Attorney General Roy Cooper and the General Assembly’s Legislative Services Officer George Hall.“There is debate among legal experts about how [the] 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.”That’s from the people whose job it is to explain constitutional amendments.

Pollsters say seniors strongly support Amendment One, but it could seriously affect opposite-sex older couples, Perry and other attorneys said. Many seniors in companionship relationships choose not to formally marry because of the potential loss of Social Security survivor benefits.

“I think that if the amendment is passed, it will have a huge impact on North Carolina for that reason, because there are a lot of people in North Carolina who live together and are not married and assume that can do that without any harm,” Perry said. “If the amendment passes, they may find that they are not able to do some of those things because they are available only to married couples.”

One of the most important rights conferred by marriage is the right to make medical decisions on behalf of an incapacitated spouse. Couples in long-term companionships who want their companion to make those decisions will often execute a health care power of attorney.

“If I were in a nonmarried situation and this amendment were to pass, I’d make sure that I had a health care power of attorney, a living will, a durable power of attorney, and a will, for added protection,” Breeden said. “A healthcare power of attorney is absolutely critical to you. If you want your partner to [make decisions], you really need to do these directives.”

The amendment states that, “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,” although that language won’t appear on the ballot.

But Perry said that because legal documents such as powers of attorney are not contracts, those documents may no longer be sufficient for unmarried couples.

“If you have in a power of attorney named someone you were in a relationship with to whom you were not married, I’m not sure a hospital would have to honor that,” she said. “That brings that into question now.”

Estate attorney Jeffrey Marsocci of Raleigh said the uncertainty extends to estate planning. Many wills refer to an unmarried companion as the decedent’s “partner,” and that language could create complications in enforcing those documents. Lawyers may need to go back and revise existing documents to correct that language, for both same-sex and opposite-sex couples.

“I’d have to say in my own practice I’ve been getting just as many questions on this amendment from same-sex partners that we’ve done documents for as from opposite-sex partners who just aren’t married,” Marsocci said.

Child custody questions

Another area Amendment One could affect is child custody law.

“I think with child custody orders, there’s a potential challenge there as it relates to the non-biological parents’ rights. There seems to be a big concern about that within the bar,” Brady said. “There have been cases in other states like Virginia where amendments have been used to overturn child custody agreements between same sex couples.”

The North Carolina Supreme Court held in Boseman v. Jarrell that nonparents could be entitled to visitation rights if the parties “jointly decided to create a family and intentionally took steps to identify [the nonparent] as a parent of the child,” and visitation was in the child’s best interests.

That case is a major focus of the UNC report about possible effects of the amendment. The report theorizes that the best-interest test may no longer apply to unmarried nonparents because courts may say it impermissibly recognizes a “domestic legal union” besides heterosexual marriage.

Breeden concurred with that analysis.

“That decision could be revisited if the amendment passes,” he said. “A partner could have a harder time than they have right now, and they already have a very high burden if it is not their biological child if they want to visit with them. There can be no status under this amendment for anything other than marriage. Courts may start to use the fact that partners live together out of wedlock against people seeking custody, de facto, whereas they can’t do that now.”

Attorneys said that the amendment could change custody law for opposite-sex couples, too. Perry said it could impact the ability of unmarried parents to get health insurance for nonbiological children.

The amendment’s private contracts clause may protect private employees’ health insurance benefits. Contracts, though, may not prevent all problems related to nonbiological children.

“Many of the things that I’m thinking about that could be implicated in the future can’t be dealt with by contract, including the custody of children regarding future separations,” said L. Stanley Brown, a family law attorney with Hamilton, Stephens, Steele & Martin in Charlotte, and a former District Court judge.

One thing is sure: If Amendment One passes, North Carolina family law attorneys will be operating amid much doubt and confusion for a while. This worries Brady.

“I think there’s going to be uncertainty for a number of years as our appellate courts sort this out, and that’s a bad position to be in if you have business before the courts,” Brady said. “I don’t know the answer to any of these questions. It’s going to take years for the courts to straighten all of this out, and that’s what concerns me about this amendment.”

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