When might the Tar Heel State legally recognize same-sex unions, and how might that come about? "No time soon," say Cheri Patrick and Sharon Thompson of the Sharon Thompson Law Group in Durham. Both specialize in legal issues facing gay men and lesbians.
Thompson and Patrick illustrate the roadblocks to same-sex unions by comparing North Carolina with Vermont. A "Common Benefits" clause in the Vermont constitution says that the government exists for the benefit of all persons; thus, when a benefit is offered to any state citizen, it must be offered to all. Vermont also has a history of governmental acceptance of same-sex relationships, with statutory regulation of same-sex parents and their children when they split up. It's therefore not surprising that the Vermont Supreme Court recently rendered a decision in favor of same-sex couples, or that the Vermont legislature has voted to give such couples some of the same legal protections that heterosexual couples enjoy.
By contrast, North Carolina has not historically recognized same-sex unions, nor does it have a strongly respected Common Benefits clause like Vermont's. And there's certainly no widespread political support. "Given the fact that our legislature passed a law prohibiting same-sex marriage in 1996 and won't touch issues such as repeal of our felony Crimes Against Nature statute, we wouldn't find support in the legislature," says Thompson, herself a former state representative.
In the near future, Patrick and Thompson say the issue is more likely to come up when North Carolina is asked to recognize a same-sex union from another state; the state would be compelled to do so unless it can prove that this would violate our public policy. "The argument that North Carolina has a public policy against granting gay people any legal protections has already been used in every gay case I have litigated," Thompson says. "So far it has not been given much credence, but in the context of recognizing gay marriages, I'm more pessimistic."
Thompson is concerned that a battle for marriage might obscure other legal issues she feels are as important for gay families. Because North Carolina doesn't permit a same-sex partner to adopt her partner's biological or adoptive child, for instance, these children can lose insurance benefits, inheritance rights and child support. (The state does allow gay individuals to adopt.) Thompson also notes that the Crimes Against Nature (CAN) statute can be used to threaten criminal prosecution; to deny custody, professional licenses and tax benefits; and to provide support for the argument that North Carolina has a public policy against legal rights for gay people.
Right now, Thompson says, "Repeal of the CAN law is the single most important issue for North Carolinians."