Against North Carolina Amendment One: The Law Of Unintended Consequences

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53 Responses

  1. Tam says:

    "It's the economy, stupid!"

    I swear, the GOP could %^&$ up a wet dream.


  2. Shawn says:

    How is it legal for a state to add an amendment that directly contradicts the US Constitution?

  3. David says:

    Patrick, forgive potentially a bit of ignorance from a layperson, but I don't understand how in your power of attorney argument, this amendment could be at all construed to prohibit Bluto's power of attorney.
    It seems that, since domestic partnerships etc. will no longer be recognized at all by the State, that Wimpy granted power of attorney to Bluto because of their relationship is not only irrelevant but can't even be considered. As far as the legal process goes, Wimpy granted Bluto power of attorney on a whim—so if the documents are all in order, in the ensuing legal fight with Olive, Bluto would not face additional hurdles due to this Amendment beyond what any family friend might face.
    As for the other arguments, why does this amendment alter the State's stance vis-a-vis marriage since, as you said, state law already defines marriage in the same way?
    Although I view with extreme suspicion any partisan changes to the state constitution, it seems to me that we might as well vote for this Amendment to restrain activist judges, and many of the arguments against it have so far amounted to, "But, but… Think of the children!"

  4. Tim says:

    Hmm… could you adopt a spouse? Or is that limited to children and puppies?

  5. Grandy says:

    David, I don't think "Think of the Children" means what you think it means.

  6. Jason! says:

    I'm going to put "might as well" up there as the worst reason ever to vote for any rights-restricting amendment to the constitution, state or otherwise; regardless of existing laws.

  7. Patrick says:

    David, my concern is this: a power of attorney, as noted, isn't a contract. Such powers are open to challenge for "undue influence" (meaning unsavory, unethical, or unlawful use of persuasive power against a person of weakened or diminished capacity) in this state, as are wills.

    Unlike a statute that defines a term ("marriage"), this Amendment alters the Constitution. As all fans of Roe v. Wade know, Constitutions contain "emanations" and "penumbras". One of the clear emanations and penumbras of this Amendment is a strong disapproval of any same sex partnership, and I'd argue same sex relationships in general. As a power of attorney is open to challenge for undue influence, I can foresee a case in which a "blood" relative challenges a health care power of attorney from one partner of such a relationship to the other for undue influence, and succeeds before the right judge.

    If you think this is implausible, remember the Terry Schiavo case. Now reimagine the Terry Schiavo case, except that where Schiavo had a husband recognized by the law of the State of Florida, our subject only has a lesbian domestic partner with a health care power of attorney, in a State that strongly disapproves of such relationships.

    Do you think Schiavo II turns out differently under those facts? I do.

  8. Lex says:

    Thanks for doing this, Patrick. And if any other folks here in the comments box live in N.C., early voting started today. Please vote.

  9. Goober says:

    Patrick – You lost me when you started talking about parents being at risk of losing their children because of this.

    I'm not sure it got through my thick skull how disallowing marriage of gay individuals puts those same individuals at risk of losing their legally adopted children.

    If it is the clause "beneficial to the child", then I think that you've missed out on the fact that they could take kids away from single parents on the same argument.

    Ca you elaborate a bit on that one please?

  10. John Thacker says:

    "They voted out longstanding Democratic majorities in the State House and Senate, and would have voted out the Governor and the State Dog Catcher if they'd been on the ballot."

    This is true, but it can't be understated that a tremendous amount of the shift was simply because the NC Supreme Court forced the General Assembly maps to not be gerrymandered. NC GOP won 57% of the vote for NC House, NC Senate, US Senate, US House, etc. Still only took a minority of US House districts, because of existing gerrymander.

  11. Dan Weber says:

    Wouldn't the Terri Schiavo case turn out differently in NC even without Amendment One? Her wife would still be screwed when trying to enforce Terri's wishes.

    Your post has still given me a reason to go the polls.

  12. WhangoTango says:

    "[A] power of attorney, as noted, isn't a contract."

    Which could mean that A: this is a sneaky underhanded legal-tomfoolery stealth attempt to make same-sex partnerships illegal and meaningless, or that B: the people who drafted the proposed amendment weren't aware that "power of attorney" was not actually a "contract" in the strict legal definition of the term.

    I'm sure it's A, because there's absolutely no way that it could be construed as anything else, right?

    Particularly since there's that sentence about "this Amendment shall in no way be construed as to permit same-sex partnerships to be recognized as valid in the State of North Carolina."

    er, wait, there's no language like that at all! And the proposed amendment seems pretty straightforward in stating what it would and would not affect. Hm. Whatever, they're a bunch of bigoted white racist fuckers anyway, fuckin' rednecks TERKERJERBS lol!

  13. Patrick says:

    Goober, courts in this State remove children from homes, or alter custody arrangements, on the sole consideration of the child's "best interests". Appellate courts review such decisions essentially on an "abuse of discretion" standard, meaning that domestic judges are usually the final decisionmaker on a custody or removal matter.

    Because Amendment One is a change to the State Constitution, it can be (and its proponents will in the future argue it should be) read as a broad statement of State policy. A judge reading the Amendment in that fashion can easily decide that it is the policy of this State to disfavor same sex cohabitation, and on that ground alone, or in combination with other grounds (slovenly housekeeping, poor report cards, truancy etc.), remove a child from a household where both parents are of the same sex.

    Amendment One gives judges who are bigots, or who have strong religious objection to homosexuality, license to act on such feelings.

    Will it be read in such fashion? Only one way to find out: Vote for it.

  14. Mercury says:

    At least the states still feel compelled to go through the constitutional amendment process. How quaint. Can you imagine a scenario these days where the federal government would feel so bound? I sure can't – now Congress just makes a law, POTUS issues a few executive orders and begets a federal agency or two. Congress gave up declaring war too…like five wars ago. How's that before/after record look?

    I don't really have a dog in this fight (ahh, the gift that keeps on giving…) but I predict that if/when same sex marriage becomes (more) established, notable attempts will be made to serially transfer assets between successive spouses to avoid inheritance/gift taxes.

    Goldman Sachs is probably already on the case.

  15. LabRat says:

    I'm sort of amazed at the prevalence of "you argued that this will potentially affect sick people and children, therefore your argument must be invalid and you must simply be prejudiced against southerners."

    I… what?

  16. Patrick says:

    There's no prejudice against southerners on this end, being a tarheel myself.

  17. Moebius Street says:

    While I agree that this Amendment would be awful, I don't follow your logic as to how a will or power of attorney could be thrown out. But IANAL; maybe you can help me understand.

    It seems to me that the domestic partnership and the will/PoA are separate matters. As a man, I can decide to leave all my worldly belongings to anyone else, right? That could be my son, my brother, or to that guy that saved my life back in 'Nam. The fact that the person that I chose *also* happens to be someone with whom I cohabitate (in a relationship that the court does not acknowledge) doesn't enter into it.

    My desire to nominate that heir originates on its own: it does not come into being as a result of our illegal partnership. That evil partnership and the will share a common cause, it's not the case that one caused the other. So if the court cannot see our partnership, the will or PoA should be unaffected.

  18. C. S. P. Schofield says:


    How is the State amendment in violation of the national Constitution?

  19. PeeDub says:

    Patrick, what's the margin required for passing? A simple majority? I've looked but can't seem to find the answer.

  20. Patrick says:

    A simple majority PeeDub.

  21. SPQR says:

    Not a NC resident, I don't support the amendment myself, Patrick, but I find it very difficult to ascribe the side effects you are predicting to it. The arguments are very unconvincing.

    The whole issue itself is blowback from the same sex marriage advocates judicial strategy.

  22. Patrick says:

    SPQR, considering that you and I are both libertarians who sometimes steer close to anarchism, it doesn't surprise me that you find the arguments unconvincing. I find some of them unconvincing myself, but unlike you I've been arguing in front of North Carolina judges, and dealing with North Carolina government officials, for almost twenty years. Nothing surprises me anymore.

    How many floats in my parade of horribles are probable? About half. How many are possible, and I don't mean in some "well it's possible that the moon is made of green cheese" sense? Every single one.

    I don't know where you come from, but I can remember when I was represented in the United States Senate by Jesse Helms and John Edwards, simultaneously.

  23. Joe says:

    Hence the new North Carolina definition of Politics:

    noun – frum Greek Poli = many tics = blood sucking parasites

  24. C. S. P. Schofield says:

    Question; to what degree do the readers (and posters) here see this kind of ill considered legislation a consequence of the several efforts to push Gay Marriage through various state courts without recourse to the legislatures?

    I think there's an argument to be made, which doesn't make the actual Amendment under consideration any better.

  25. Crissa says:

    Hospitals have gotten away (in court) with ignoring power of attorney before by citing best policy and first amendment right (their own, of course). So warning about this isn't made-up stuff, it's something which has happened already.

    CSP: If a state has equal rights in its constitution, courts is a way to do it. That's how we got Brown vs Board of Education and Loving vs Virginia. We have three branches of government, after all.

  26. David says:

    Patrick; while I haven't looked over Schiavo as thoroughly as I might, it seems that case proves my point: same-sex couples will not be particularly or newly disadvantaged by the Amendment on those grounds. I readily acknowledge that power of attorney in such situations, even to the eyes of a layperson, is a very tricky thing because of its implications.
    I will agree with you that it is indeed a most poorly thought out law. However, part of my hesitance to vote against the law arises because, as SPQR said, "I find it very difficult to ascribe the side effects you [and other supporters] are predicting to it."

  27. Reuven says:

    21.8% of North Carolina is African American. 88% of them will oppose same-sex marriage, if they vote as they did in California. I hope the "No on One" people are reaching out to this community.

  28. NL_ says:

    If somebody is going to argue that the initiative process is only being utilized in response to courts getting involved, one could turn the dial back a notch further and argue that the courts are only getting involved in response to legislatures refusing to address the problem.

  29. piperTom says:

    I had the honor to author the state Libertarian Party's resolution on this abomination.

  30. tim says:


    These arguments are being played out in real life in almost every state in the union. Hospitals have denied visitation even though the individual had power of attorney. And I've experienced a death of a friend who's sister openly denied the relationship her brother was in for 30 years and challenge the will – but eventually stopped when it was determined he had no real assets anymore. As he (at some cost) transferred almost all his assets to his partner over a ten year period. This is the situation that gay people deal with on a daily basis.

    Personally nothing scares me more than being in some city and something happens where I can't spend time last moments or make decisions for my partner due to a medical emergency because of silly laws like this.

  31. InMD says:

    At CSP Schofield

    That's probably a significant reason for it, though I can't say I don't sympathize with the strategy. The legislative process is subject to reversal by referendum. Many thus feel the the courts are the only sure option. It makes perfect sense from both a tactical and strategic perspective.

    In Maryland for example, the Court of Appeals upheld the constitutionality of our law defining marriage as between a man and a woman. Legislation to change the law passed this year, though is quite likely to be challenged in a referendum. Currently polls show a very narrow majority supporting the change but I have no idea how motivated the population of this state is going to be to defend it in the event it comes to a vote. Maryland votes Democrat for historical and demographic reasons but it really isn't what I'd call a bastion of social liberalism on these sorts of issues.

    Also as a sidenote, thank you Patrick for complimenting the beauty of the Old Line state. We all think quite highly of North Carolina as well, except of course, during college basketball season. You'd also probably be pretty bemused by the relics of the common law that persist up this way.

  32. SPQR says:

    Patrick, I'm in Colorado these days.

    tim, I deal with estate planning issues all the time. I deal with medical powers of attorney regularly. I've never seen an issue with any medical provider refusing to honor a medical POA for anyone on the basis of a gay relationship. The stories existant come from a few incidents where the dispute arose from circumstances other than the gay relationship and happen more often among het relationships. These claims of yours are grossly exaggerated. But more importantly, they are entirely separate from what Patrick is writing about.

  33. Michael D. Gale says:

    Patrick, I think that you've missed the two primary arguments against either elected officials or the public voting in an anti-same-sex marriage law. The weakest argument is that fundamental rights are not subject to popular vote. A popular vote can weaken or block the government protection of a fundamental right, but it can not eliminate it.
    What I see as the more valid argument is more personally oriented. If your personal beliefs, in this case against same sex marriage, can be enacted into law then that means that you fundamentally support the ability to have religious beliefs that contradict and even restrain your own beliefs to become law.
    To put it into a NC perspective: To support this amendment means that its okay to support an amendment making it against the law to consume pork or pork products.
    A government powerful enough to enforce your religious practices is powerful enough to prevent your religious practice.

  34. Crissa says:

    It's not just a few incidents, it's that it doesn't get much coverage.

    There was just a big series of cases where retirement homes in California were refusing power of attorney, and some counties were ignoring it to claim abandoned property.

    They're still doing it, even though that's blatantly illegal in California. When you're sick, how are you going to fight for your rights?

  35. Crissa says:

    I shoulda put scare quotes around 'abandoned'. Since it was only 'abandoned' because they'd hospitalized the owner of record.

  36. Patrick says:

    Michael, thank you for the comment. I'll have more to say about this amendment between today and May 8, but my goal in writing yesterday's post wasn't to make moral or philosophical points.

    I'll have a lot to say about the morality of the law in the future.

  37. SPQR says:

    Crissa, if you are talking about the Sonoma county case, that does not buttress tim's claims – the orientation of the victims had nothing to do with the abuses by the county.

  38. Bob Roberts says:

    If the problem with this amendment is improper drafting, could you suggest alternative language which would avoid the problems you mention?

  39. Patrick says:

    Considering that I'm in favor of legalizing same sex marriage Bob, why would I?

    That said, you could do worse than the language of N.C.G.S. 51-1, linked above.

  40. Xenocles says:

    As you mention, the amendment contradicts the full faith and credit clause of the federal Constitution. Is there reason to believe it would survive a lawsuit?

  41. Bob Roberts says:

    I think another useful link is § 51‑1.2.:

    "Marriages between persons of the same gender not valid.

    "Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina."

    This statute, incidentally, does not have any provisos protecting private contracts. During the years in which this statute was enforced, did the courts invoke the penumbras to invalidate any contract, will or power of attorney? If not, why anticipate such a thing with Amendment One?

  42. SPQR says:

    Xenocles, in general, the Full Faith and Credit clause does not require a state to recognize marriages which violate its own public policy.

  43. Xenocles says:

    I'll admit to ignorance on the topic, SPQR, but has there been an actual ruling on this? The Maryland AG, for example, put out an opinion recommending that state agencies recognize SSM from out of state even though it's not legal to get one there (this was well before they passed this year's legalization which itself may not ever be realized). He cited the full faith and credit clause as support.

  44. SPQR says:

    Yes, Xenocles, there are examples in case law. Most of them in the past involve things like marriages which are between people too closely related in one state's laws that move to another. Some states recognized such marriages and some did not. The Supreme Court has not ruled on a marriage specific case but has a line of rulings regarding states that refuse to apply other state's statutes e.g., Nevada v. Hall.

    In contrast, Supreme Court precedent is that once a dispute is reduced to judgment, then the judgment itself must be recognized among the states under the Full Faith and Credit clause.

    Maryland's AG opinion is not required under current Full Faith and Credit precedents.

  45. SPQR says:

    And I forgot to mention that the Defense of Marriage Act specifically exercises Congress' power under the Full Faith and Credit clause to state that state's need not recognize same sex marriages from other states.

  46. Matt says:

    I recently wrote about this, thought I share my thoughts….I find it commical that this is even up for vote, America is a strange place these days.

  47. Sandy Shoes says:

    I realize, Patrick, that you are arguing for gay rights, but I came here to try to find out how this will affect heterosexual couples and I went and read Maxine's publication, but I still do not buy any of these arguments pertaining to heterosexuals. I am just trying to fully understand the issue and possible impacts it will have. (The obvious, being to gay couples).

    She talks about domestic violence laws, but I don't see how. If I were living with a roommate (same sex or otherwise) and that roommate abused me, then I would call the law and they would have the same course of action as if it were my boyfriend or husband.

    They talk about child custody issues, but I don't see how that would affect heterosexuals, because either you are or are not the child's parents. The law couldn't remove a child from a gay couple that had legally adopted a child, simply because they are gay. There would have to be other issues as mentioned (housekeeping, abuse, truency, etc.) and in that case maybe the best interest of the child IS elsewhere.

    The health insurance argument seems bogus as well. I cannot cover my boyfriend (or my next door neighbor) on my health insurance. I am considered married under state law if I have lived with said boyfriend for 7 years, and therefore health insurance can be legally obtained. I can't insure my husband's children from another marriage on my health insurance either. So how are all these "poor children" going to suddenly lose their coverage, if the amendment is passed?

    The only valid point that I can see, is that unmarried heterosexual partners could be denied visitation privileges at a hospital. If I gave my coworker, female or male, a power of attorney or all my wordly possessions after I'm dead, I would expect it to be upheld, assuming I followed the correct process.

    Can anyone give me a specific reason how this would affect heterosexual unmarried partners?

  48. Patrick says:

    Sandy, the health insurance issue discussed above pertains to declared, and presently recognized, domestic partners of employees of city and county governments, of whom there are a large number precisely because said local governments offer these benefits as a recruiting tool to potential employees, many of whom moved here from other states precisely because of the offered benefits for their partners.

    I'll be publishing an interview with one such couple in the very near future, as soon as I can find the time to finish transcribing it.

    By the way, I haven't discussed "poor children" at all in the context of health insurance (any literate moron reading the amendment can see that the health insurance contracts I actually do discuss will be instantly voided if the amendment passes). So what was your point in bringing that up?

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