Good morning and I am sad to have to be addressing this topic today, but then again the Legislature this year has been filled with sad days and votes. So let’s be clear what the proposed amendment the Legislature in North Carolina just passed and placed on the ballot does— it does not just define marriage as only between a man and a woman—it also bars all heterosexual as well as gay domestic partnerships and civil unions.
This is not a mere codification of the existing law, but a vast expansion, creating one of the most, if not the most, extreme and intrusive law in the nation—setting NC on an 8 month course for a bitter, divisive campaign pitting North Carolinian against North Carolinian; family members against each other, and serving only to create an atmosphere of tension, instability and the almost certain potential for acts of prejudice across this state on all fronts—at a time when North Carolina needed leadership and unity, our citizens found little of either in the General Assembly.
And what was the exigency for this crucial amendment, requiring a special session of the legislature to adopt—since the law of North Carolina has been clean and clear for decades—that marriage is only recognized in this state between man and woman-was there a bill pending to change that law? No. Ever been one? No. A lawsuit in State or Federal court to challenge the North Carolina law? Nope.
Overwhelming public support or polling data indicating this issue was top of mind and worry for North Carolinians? Nope—jobs and education and health care and practically
every other topic was ahead of this Kafkaesque proposal.
The sad genesis of this amendment— only the second one ever proposed to eliminate
minority rights rather than expand them—was quite simply fear. The North Carolina Legislature seeks a public vote to amend our constitution out of nothing but fear—fear of aberrant judge; fear of the unknown to some; fear of fellow citizens who just might find the search for liberty encompasses different principles in different generations.
As Justice Kennedy has written, “liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct”—but apparently not in the NC legislature.
So what is the effect of this proposed amendment?
Well, it appears at a minimum:
- To change the rules of legal recognition of joint parenting rights; Legal recognition of a child’s relationship to her parents
- Eligibility for public housing and housing subsidies
- Potentially, access to employer based health and other benefits by partners as well as non-biological not jointly adopted children
- Access to Medicaid and Medicare benefits
- Ability to enroll non bioligical children in public schools or to authorize emergency medical care for them
- Ability to make health care decisions for incapacitated partners
- Ability to obtain life insurance
- Affect on many deeds, trusts and wills
- And, enormously affects the reach of domestic violence laws of this
state–precisely the reason the domestic violence coalition opposed this bill
Oh yes, I might add the amendment probably costs those who receive SSDI and Medicaid benefits from a disability and who now live in domestic partnerships some 25% of their benefits under the federal marriage penalty.—thus dramatically affecting many seniors and other citizens who have no idea the effect this law might have on their lives.
This amendment, offered in its final form, 15 minutes before it was put on the committee calendar, discussed at a committee hearing for less than one hour with no public input or outside legal analysis allowed, then debated and voted on the floor of the house not one hour later—a model for how never to govern sure to be included in every political science book of the future—threatens to alter the family law landscape in ways never even contemplated by its authors or certainly understood by those who voted on it.
In Zablocki v Redhail, the Supreme Court wrote: “Marriage {and legally recognized
relationships} is a coming together for better or worse, hopefully enduring and
intimate to the degree of being sacred.” It is an association that promotes a harmony in living and a bilateral loyalty between partners.
Justice Blackmun later wrote in dissent in the Bowers case: “we protect family because it contributes so powerfully to the happiness of individuals not because of a preference for
stereotypical households.”
Domestic partnerships perform many of these exact same functions, partnerships this bill
outlaws: they are agreements between parties that recognize families may include a third category of not married, but not single people, using existing legal principles so that the relationship may be acknowledged by lawyers and employers, legislators and citizens alike.
These partners exhibit mutual obligations to each other of support, love, companionship, subsistence and permanence. Yet, this amendment eliminates all of those as North Carolina values for many with great cost not only to the couple—heterosexual or gay—but to society as well.
The right to intimate association guaranteed to us all becomes meaningless if it
only applies to heterosexuals. To be permitted to have a lifetime relationship with someone that has virtually no legal effect is a gross example of distinctly unequal treatment that has no basis in law or equity.
Civil rights are not a reward given by society for conforming behavior. How many other people with whom we might disagree do we intend to constitutionally vote off our island?
Just as Plessy v Ferguson perpetuated the disguised harm facilitated by separate but
equal, the same is true here. This amendment does nothing less than create an equally discriminatory doctrine of tolerance but not acceptance.
We have just abandoned “don’t ask don’t tell” on a national level, but now the majority in the legislature wants to constitutionalize a far more virulent form of that in North Carolina when the national and international trend of history is moving in exactly the opposite direction.
Family units do not simply coexist with our constitutional system—they are an integral part of it. They presuppose a social system of values. Family units allow individuals to work together to provide the resources and social support needed to navigate life.
Family members care for each other and are committed to shared interests with an emotional attachment that derives from the intimacy of daily association. Families, in whatever their form, all meet the incredibly human and societal need for closeness, trust and love. And, despite the legislature’s efforts through this amendment, no government can outlaw or create a second class of human relationships.
Further, this amendment, aside from all of the personal suffering it would cause many of our fellow citizens, also fails to recognize its tremendous economic effect—individual interdependence reduces economic burdens on society.
When disruption occurs, unemployment at 10.5% in North Carolina for example, family members are often capable of bearing this burden without reliance on outside resources—but this amendment now cuts them off from this safety net.
This amendment fails to realize the conflict over same gender relationships is not a zero sum game—instead each long term committed relationship by any couple is part of a system in which the prosperity and well being of the whole system depends on the prosperity and well-being of each of its parts.
Long term legally recognized relationships are a unifying force, not a divisive one. And, if this amendment passes it will patently deprive this state of the talents of many so needed in the creative and innovative economy.
Society benefits writ large when its members can take care of themselves and, throughout history, it has been family and long term committed relationships that make this a reality regardless of their form, unlimited by biology.
It is the nurturing of family values that affects the quality of family life, not the form of the family. Liz Taylor, I am certain, loved her husbands—all seven of them—but I think society is bettered by a LGBT couple in a committed lifetime relationship not someone who marries seven times.
In short, a limited view of family directly contradicts the importance of family to society. The majority in the Legislature who passed this bill argued tradition as its rationale.
Well, like Fiddler on the Roof, “on the other hand”, if it is the tradition of this state to deny family ties based on love, it is a tradition which relies on intolerance and fear and prejudice and it does not apply to everyone.
There was a time when it was tradition for some in this room to count as only 3/5 of a person. There was a time when most in this room could not vote due to gender. There was a recent time when race determined who could marry whom. But we can and do mature as individuals and as a nation. That is the wonder of being human. And, so what is seen in one generation as tradition comes to be understood by future generations as oppressive.
So, I would suggest a more powerful tradition exists in this state than tradition in this context—pluralism—of making room in the law for all who wish to participate in and meaningfully contribute to our state and society.
The challenge of leadership the majority of my colleagues failed in placing this amendment on the ballot—was to focus this state on our shared values and not on our differences. “(T)he test of freedom’s substance is the right to differ as to things that touch the heart of
the existing order.”
We are all scared of the dark, but the real problem comes when we become scared of the light.
And, in the end, this amendment also fails to recognize it is a constitution we are changing, not a statute. The Court, in West Virginia Board of Education v Barnette, many decades ago, had it right: “the very purpose of a bill of rights is to withdraw certain subjects from the viscitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
One ‘s right to life and liberty may not be submitted to a vote—they depend on the outcome of no election.” But under this amendment, the most intimate personal decision we as human beings will ever make—who we wish to spend our life with—now becomes subject to a government stamp of approval enshrined in the constitution of the state potentially in perpetuity. And we do it out of nothing but pure fear.
I close with the idea stated best by author Anna Quindlen—“no one ever does the right thing from fear and so many of the wrong things are done in its shadow—homophobia, prejudice—all bricks in a wall that divides us, bricks cast of the clay of fear of that which is different.”
At the heart of liberty, suggested Justice Kennedy, is the right to define one’s own existence of the meaning of the universe and of the mystery of human life.
Today, through this amendment, the heterosexual majority prevents so many of our fellow citizens from claiming, as values, love and commitment, when there is no evidence to support that is true.
This amendment should fail, as Peter St. Onge of Charlotte, has written, “not because we finally accept people who are different, but because we understand they are not.” We are all created in the image of God.
And, one would think if we are good enough for God, we ought to be good enough for each other. Yet, this amendment at its core seeks to declare we are not.
The Constitution of North Carolina was not created to be a tool to divide our citizens one from another nor as a device to maintain the majority’s fiction about the minority. It has been used before to that end and we have always come to regret it.
As 9/11 established, there are threats enough to our common values as North Carolinians; we threaten our own good by making enemies of our neighbors and friends.
The Constitution holds out equality as an ideal; this amendment would say we are just kidding. The divisiveness, irrationality, intolerance and fear that are at the heart of this amendment can not be allowed to succeed. The law and the people of North Carolina “beat with a better blood.”
A friend of mine told me recently that he and his wife, who have several children, have come to believe their son has a different orientation. But they love him unconditionally, as they do their other children, and when they look at him and then at this amendment, they cry inside wondering why it is we think we have the right to deny him the same happiness of a legal life partner that he and his mother have found in their lives.
As a parent, I relate completely and have no answer for the question he raises—how omnipotent we believe ourselves to be to suggest we can serve as God’s proxy in this most
private and spiritual of all decisions.
I am reminded of a recent Facebook post that said—“some days I get so angry at God and want to ask him why, when he could stop it, he allows so much injustice, poverty and intolerance in the world, but then I realize he might just ask me the same question.”
The fight over this amendment allows us all the opportunity to educate each other
and remind everyone that the people to be harmed by its passage are all of us—our children, grandchildren, brothers and sisters, neighbors, friends and colleagues.
We truly are all God’s children and the main obstacle in North Carolina to understanding that is this amendment.
It should be defeated and, in the end, if we do, we will all be the better for it when our many miles of walking on this earth have ended.
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