Still waiting to feel the effects of Amendment One

North Carolina’s constitutional amendment to ban same-sex marriage and other types of recognition for same-sex couples marks its first anniversary May 8. So far, the amendment has had less immediate impact than supporters hoped, and much less impact than opponents feared.

Amendment One, as it came to be known, states that “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.” In the run-up to the vote on the amendment, opponents expressed concern about that wording, saying it could lead to the denial of domestic partner benefits for public employees, a loss of protection for unmarried domestic violence victims, and changes to state law concerning adoption and end-of-life decisions.

So far, none of that has come to pass. And in the specific case of domestic partner benefits, the continuation of those policies in some cities and counties has surprised both supporters and opponents of the amendment.

“There was this parade of horribles that was going to happen that the other side trotted out,” said Tami Fitzgerald, executive director of the North Carolina Values Coalition, a pro-amendment group. “The only claim they made which should have come true, and which has not come true, is the claim it would negate benefits for public employees.”

Indeed, the three counties that offered benefits to same-sex employees before the amendment passed all still offer them, and Buncombe County voted to begin offering them in March. Six cities continue to offer the benefits as well. University of North Carolina Law School professor Maxine Eichner, who wrote a highly publicized paper warning of possible legal consequences of the amendment, said that local governments “are sitting tight and waiting to see if there will be a suit.” So far, no suits challenging the benefits have been filed.

“I am somewhat surprised, but it seems to me that domestic partnership benefits are probably not a great entree for proponents of Amendment One to go court. They’re a potentially useful organizing advantage for opponents to Amendment One if these were challenged in court, and that may account for some of the delay. But I also think that court processes are slow and litigation costs money. I do think a challenge will happen eventually, it just hasn’t happened yet,” Eichner said.

Eichner said that the amendment may still be having some effect on the adoption of same-sex partner benefits. Winston-Salem was considering adding benefits before the amendment passed but has since backed off, waiting to gauge the legal landscape.

Fitzgerald wouldn’t say whether her organization would consider any lawsuit against those cities or counties, but said that she was “surprised that counties and cities have had so little regard for our state constitution that they’re not following the law, and if they don’t follow the constitution, I think it’s very likely that they’ll see some sort of legal challenge.”

The amendment also has not had any appreciable impact on domestic violence law so far. In her paper, Eichner noted that a similar constitutional amendment had been used in Ohio to invalidate domestic violence protection orders for unmarried women. Both Fitzgerald and Eichner said that people they’ve spoken to had not heard of that argument ever being raised in North Carolina courts.

Both also seemed to agree that the impact of the amendment may have been blunted by the current composition of the legislature. The amendment would presumably prevent the General Assembly from creating any sort of recognition for civil unions for same-sex couples. The current Republican-dominated legislature has not given any hint of an appetite for anything like that, but if Democrats return to the majority the amendment’s constitutional roadblock could have a much greater practical impact.

Fitzgerald said that was important in light of the lawsuit challenging California’s constitutional amendment banning same-sex marriage. The trial court judge who struck down the amendment cited the state’s decision to award civil unions but not full marriage as part of the support for his ruling. That case is currently before the U.S. Supreme Court, and if the court were to uphold the decision in a sweeping manner, the whole debate over Amendment One could quickly become moot.

Eichner said one year was not a very long time in which to assess the amendment’s long-term effect.

“The process of law and legal interpretation is not a quick one,” she said. “At this point, we don’t have any real direction in ascertaining the scope and meaning of Amendment One thus far.”

Follow David Donovan on Twitter @NCLWDonovan