05/03/2012 09:11 am ET Updated Jul 03, 2012

North Carolina's Anti-Gay Marriage Snowball -- Where Will It Stop?

On Tuesday, May 8, North Carolina's voters will decide the fate of Amendment One, an amendment to the state constitution that makes marriage between a man and a woman the only valid "domestic legal union" in the state. Its supporters insist that all the amendment does is ensure that North Carolina's current ban on marriage equality not be subject to the whims of "activist" state judges who might seek to overturn existing law. This is ironic, given that the broad and vague language of the proposed amendment smacks of a jobs bill for lawyers and judges, likely as it is to keep North Carolina courts busy and active for years to come trying to figure out exactly how wide-ranging are the amendment's consequences.

It is a certainty, as even some of the amendment's staunchest supports concede, that passage would invalidate benefits that some local governments in North Carolina provide to their workers' same-sex partners. Beyond those certain effects, numerous legal scholars have pointed out that the implications of this amendment could be sweeping.

According to a detailed analysis by Professor Maxine Eichner and colleagues at UNC's School of Law, amendments invoking similar language in other states have already threatened an array of rights and benefits, including legal protections from domestic violence for unmarried couples, rights to dispose of a deceased partner's remains and effects and rights of inheritance. The "pro" side has failed to provide a compelling response to this analysis and instead has resorted, repeatedly, to insisting that, in effect, there's nothing to see here, just move along. For example, amendment supporters have dismissed concerns about domestic violence statutes by pointing out that in Ohio, where domestic violence protections for unmarried couples had been challenged after passage of a constitutional ban on same sex marriage, the state Supreme Court ultimately ruled that domestic violence laws were not implicated by the ban. In reality, this is cold comfort, because on more than two dozen occasions over a nearly three-year period, lower courts in the Buckeye state threw out domestic violence protections for non-legally married couples, concluding that applying such laws to those couples would amount to a tacit legal acknowledgment of a union they believed the state constitution explicitly barred.

Until Ohio's high court ruled, the state's laws in this area were thrown into disarray. Additionally, there is no guarantee that state courts here will come to the conclusion that the Ohio Supreme Court ultimately did, especially since the language of the North Carolina amendment is more expansive than Ohio's. In fact, no court has ever ruled on the meaning or application of the phrase "domestic legal union." Consequently, the novel and untested language of the amendment might well invite legal chaos and could induce activist conservative justices (in case you haven't noticed, conservatives judges are not, contrary to their movement's claims, immune to judicial activism) to interpret the amendment very broadly.

Amendment supporters have also pooh-poohed worries about the potential impact of the amendment on wills and estates. There is language in the amendment to the effect that contracts between private parties are not affected by the amendment, and supporters insist that, in effect, any private arrangements among gay and other unmarried couples that currently exist can continue to. But wills are not contracts and, according to family law attorneys In North Carolina, their status would almost certainly be subject to legal wrangling should the amendment pass, since wills often refer to the "partner" in unmarried relationships and these might be overturned by judges who interpret the "domestic legal union" clause to invalidate legal recognition of such unmarried partners.

The amendment might also affect child custody cases. Under current North Carolina law, non-parents could be entitled to visitation rights if the parties "jointly decided to create a family and intentionally took steps to identify [the non-parent] as a parent of the child," and visitation was in the child's best interests. If the only valid domestic legal union is marriage between a man and a woman, courts could reverse this ruling, throwing out non-parents' visitation claims on the ground that they had no legally recognized relationship to the child in question.

The polling on the amendment is clear. A majority of North Carolinians has expressed support for an amendment that they believe will defend "traditional marriage." When, however, voters are made aware of the potential consequences of the amendment for other kinds of same-sex domestic partnerships, like civil unions (such unions would be impossible if the amendment passed) as well as the above-noted issues - same-sex benefits, rights of inheritance and so forth - support drops significantly. That's because a large majority of North Carolinians support at least some recognition of same-sex couples, even if many don't believe such relationships deserve equal status with heterosexual marriage. The amendment's high profile supporters have, therefore, worked overtime to obscure or misrepresent the fact that the amendment's actual consequences would override the sentiments of a clear majority of North Carolinians. In fact, some have gone so far as to argue that nothing will change at all if the amendment passes because all the amendment does is reaffirm existing law. But this particular hand waving about the amendment is an out and out lie.

In sum, amendment supporters are engaged in deception when they insist that all the amendment would do is strengthen the existing ban on gay marriage. Passage would - in addition to invalidating already existing benefits for same sex couples and precluding civil unions, which a clear majority of North Carolinians support - open the door to legal and familial disruption and uncertainty for perhaps years to come. And for what? Supporters have failed to provide any evidence whatsoever that marriage equality would undermine existing marriages, families or communities. No credible evidence exists pointing to a decline in family cohesion and marriage in states that have legalized marriage equality. Facing these basic truths, opponents of marriage equality have resorted to invoking vague and insistent warnings about the threat to the institution of marriage, while playing an underhanded game of stoking prejudice and divisiveness, goals that the National Organization for Marriage outlined explicitly, according to recently released strategy memos. And in a recently revelatory hint of the lurking id behind the marriage amendment, the wife of a Republican state senator who sponsored the amendment when it passed the North Carolina legislature, averred that the real reason for the amendment was to defend the "Caucasian race." (you can read for yourself her attempts to explain that little gem).

We don't know all of the consequences that would ensue if the North Carolina amendment were to pass and perhaps some of the above-noted fears would not be realized. But we do know that the amendment supporters' claim that the amendment doesn't change anything is simply false. And we know that were they to honestly acknowledge what the amendment will definitely do, as well as what it might do, they'd be fighting for a losing proposition.