Republican leaders in the General Assembly see a problem, and they're calling the Legislature back into session next Monday to address it. No, the problem they see isn't the state's need for jobs. Rather, it's the state constitution, which proclaims in Article 1, a ringing Declaration of Rights, that all citizens are created equal, that they are entitled to equal rights—including the pursuit of happiness—and that "No person shall be denied the equal protection of the laws."
The Republicans are worried that an "activist judge" might one day decide that equal means equal and strike down the state's marriage laws, which provide a host of property, tax and social benefits to straight couples if they marry but deny the same benefits to gay couples—who cannot be married under North Carolina's Defense of Marriage Amendment, or DOMA.
That's what happened in Iowa, House Majority Leader Paul Stam, R-Wake, warns. Even though Iowa had a DOMA on its books just like North Carolina's, the Iowa Constitution also contains an equal-rights guarantee similar to ours. And the Iowa Constitution, Stam says, was the basis for a 2009 Iowa Supreme Court decision declaring that the state's marriage laws must accord equal rights to gay and straight couples.
Thus Iowa, "a normal state" in Stam's opinion, is now one of six, plus the District of Columbia, that permit same-sex couples to marry. The others are New York, Massachusetts, Connecticut, Vermont and New Hampshire. Four other states have legalized civil unions—in effect, a lawful marriage by a different name—and five more have laws that extend most or all of the legal and economic benefits of marriage to unmarried couples, including gays.
That's a total of 15 states that no longer regard homosexual unions as abnormal, according to the N.C. Family Policy Council, a conservative group that views the trend with alarm. "Marriage is an important public good," it notes in a policy statement, "associated with a range of economic, health, educational and safety benefits that help [governments] serve the public good."
But marriage only works, the council says, if it's an "exclusive institution." If gays can marry, the whole thing falls apart.
Why? The council doesn't say, but Stam does. It's because gays don't really want to get married. "I think you'll find," Stam said at a press conference last week, "that the impetus for same-sex marriage is not for same-sex people to get married—very few of them do. Rather, it is to delegitimize marriage as an institution."
But don't very few gays get married because most states, including North Carolina, don't allow them to marry?
Stam said it's more complicated than that.
"If marriage is just anything you want it to be," Stam said, "then those who are considering whether to get married or not, and who don't have strong opinions one way or the other, [they] just don't, because of, uh, the complications.
"So the more of them that don't, the more illegitimacy we have, the more poverty we have, the less educational attainment we have, the less productivity—and you'll see that in future generations."
In short, the more people who are allowed to be married and raise children in a marriage, the fewer people who will be married and raise children in a marriage—and the more children will end up on welfare. Or so Stam said.
The N.C. Family Policy Council is one of the conservative and right-wing groups agitating for North Carolina to write the DOMA into the state constitution, as 30 other states have.
Starting Monday, the Republican leadership will attempt to take the first step in that process in a legislative session expected to last just a few days. Two or three other amendments may also be debated, Stam said, but the focus will be on the DOMA, which proponents call the "Marriage Protection Amendment" and opponents label the "Anti-LGBT Amendment."
Stam, a longtime opponent of gay rights, and Rep. Dale Folwell, R-Forsyth, another member of the Republican leadership team, were tapped to make the case for the DOMA amendment in the press conference. Senate Bill 106 will be their vehicle, they said. It asks for a voter referendum in November 2012 on this amendment: "Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this State."
The Republicans expressed some doubt whether SB 106 will muster the needed three-fifths majorities in both houses. Stam said it would pass easily but for "interference" by Gov. Bev Perdue, who, like most Democrats, thinks the amendment is a ploy to stir up Republican base voters. Perdue voted for the DOMA statute as a legislator when it was enacted in 1996.
If every Republican votes for the bill, SB 106 will pass the Senate with at least 31 votes out of 50; in the House, however, the 68-52 Republican majority is four votes short of three-fifths, so at least four Democrats will be needed to put the amendment on the ballot. Perdue cannot veto a constitutional amendment, although she can try to persuade legislators that it's a bad idea.
Whether a state constitutional amendment would matter for very long is an open question. The U.S Constitution protects the fundamental liberties of all persons (the Fifth Amendment) and compels every state to accord the equal protection of its laws to "any person within its jurisdiction." A voter-approved DOMA amendment to the California Constitution, passed after the Legislature changed the marriage laws to permit gay marriage, is now under review in the federal courts. The U.S. Supreme Court ruled in 2003 that state laws governing sexual activity must not discriminate in favor of heterosexuals or against gays.
It's not clear, moreover, that a DOMA amendment to the North Carolina Constitution would trump the state's Declaration of Rights, which guarantees to every person "certain inalienable rights," including life, liberty and the pursuit of happiness. It also states, though, that all "political power" and "all government" is vested in the people "and is founded upon their will only, and is instituted solely for the good of the whole."
So if the people of North Carolina were to vote to discriminate against gays, would that—under the state constitution—be an acceptable expression of their will? Or an unacceptable violation of the guarantee that "No person" will be denied equal rights?
In the 15 years since the DOMA statute became law, state courts have been mute on these questions. That's mainly because LGBT rights advocates have chosen not to raise them in court. It's also because our elected judges aren't known for bold rulings in controversial cases.
Opponents of the DOMA amendment, led by the gay-rights advocacy group Equality North Carolina, believe SB 106 is blatant discrimination based on homophobia, plain and simple.
Beyond that, however, they worry that the language of SB 106 is so broad that a judge could read it to bar not just same-sex unions but also the kinds of domestic-partner benefits offered by many employers and some local governments.
They question, too, whether contractual arrangements that many same-sex couples enter into in lieu of marriage rights—covering their joint property interests, for example—might be voided by the provision that the only "valid" union is a marriage.
And House Democrats on Tuesday issued a statement that passing this legislation would hurt the state's business recruitment efforts.
"This distracting and discriminatory amendment harms our state economy by sending a message that our state doesn't welcome the diverse workforce that modern employers need to compete in a global economy," Rep. Joe Hackney said.
More than 50 major private companies in North Carolina offer same-sex domestic partner benefits, including Bank of America and Food Lion.
Stam said the amendment isn't intended to interfere with domestic-partner benefits offered by private employers (government employers, however, would be barred) or with private contracts. Otherwise, the amendment's backers think it's fine to discriminate against gays when it comes to family issues. Proponents make three arguments:
- It's up to the people whether they want to discriminate, and the Republicans are convinced that the people want to discriminate—despite mixed polling on the subject.
- Gays are "different" and the laws can therefore treat them differently.
- The institution of marriage is "foundational" and exists for the purpose of childbearing and childrearing. It works best when it's reserved exclusively for one man and one woman. Excluding same-sex couples is therefore a desirable form of discrimination.
On the first point, Folwell said he's not telling the voters to ban gay marriage. All he's saying is, the voters should decide, not legislators. "It's time we put this decision to the people of this state for the basic reason that we need to put the decision to the people," Folwell said, "so they can define what marriage is, and not us."
Stam stepped in when the question was raised whether the voters might've wanted laws against miscegenation—mixed-racial marriages—not so long ago. The U.S. Supreme Court struck down miscegenation laws as unconstitutional in 1967, for the well-established reason that the majority's prejudice can't be allowed to violate minority rights.
Stam dismissed any suggestion that the two forms of discrimination are equally abhorrent. "Miscegenation laws never had the slightest basis in morality, biology or good political philosophy," he said. "They were just sheer racial prejudice."
But Stam had a bit of trouble explaining how gays merit different treatment and blacks don't. At first, he said people can't choose their race. So, he was asked, being gay is a choice? "I dunno, some do, some don't," Stam said, waving off the question. "There's a biological difference that everyone recognizes. Whereas for race, there isn't."
(For the record, the American Psychological Association has authoritatively stated that being gay is not a choice. The APA has also issued a policy statement opposing all discrimination against gays and lesbians.)
Things got even murkier as Stam attempted to explain why the biological difference, whatever it is, justified discriminatory laws favoring heterosexuals.
The reason, he explained, is for the children and the future good of society. "The normative view of marriage over millennia," he said, is that it's for one man and one woman. Shortly, however, he backed away from that argument.
One-fourth to one-third of the world practices polygamy in some form, Stam said. So if same-sex marriages are allowed in North Carolina, "polygamy'd be next." Then incest. Because, Stam said, "You cannot construct an argument for same-sex marriage that would not also justify philosophically the legalization of polygamy and adult incest."
But if marriage can be limited to two people of different sexes, rather than, say, two of one sex and three or four of the other, if two is "normative"—then why can't marriage be limited to two people, period?
This question was left hanging as Folwell stepped back in. "It's time that we settle this issue," he said. "The people who are in favor of this bill will live or die by how the people of North Carolina feel about it."
Opponents of SB 106 think a fight over gay marriage is not what the state needs right now. On the other hand, they may want to remember that if the amendment comes to a vote of the people, and the gay-rights side wins, the state's DOMA statute should fall quickly—at least, if Rep. Folwell has his way.