Bay Area Family Law Blog
North Carolinians to Vote on Same-Sex Marriage Ban
North Carolina is the only southern state without a constitutional ban on same-sex marriage, at least potentially until today – May 8 – when citizens of North Carolina will have the chance to vote on Amendment One. Amendment One is intended to go beyond the North Carolina state law, Statute §51-1.2, that already prohibits same-sex marriages “whether created by common law, contracted, or performed outside of North Carolina.” Amendment One, if approved, would rewrite the North Carolina constitution to provide that marriage between one man and one woman is the “only domestic legal union that shall be valid or recognized in this State.”
This is an extraordinary step that significantly reduced the civil liberties of same sex couples in North Carolina. That state is one of many states grappling with ballot measures to ban same-sex marriage. In 2008, California adopted Proposition 8 that amended California’s constitution to define marriage as that between a man and a woman. Proposition 8 was adopted to counteract a 2008 California Supreme Court decision, In re Marriage Cases, granting same-sex couples the right to marry. Proposition 8 was successfully challenged in a 2010 district court decision, Perry v. Schwarzenegger, which declared the amendment unconstitutional. Recently, the Ninth Circuit upheld Perry but the ability of same-sex couples to marry is on hold pending further appeal.
While the future of same-sex marriage in California is as yet undetermined, same-sex domestic partnerships will continue to be recognized in California, thus affording same-sex couples some of the important benefits granted to married couples. The domestic partnership laws in California stand in stark contrast to Amendment One. Indeed, what is unique (and particularly troubling) about Amendment One is that it goes beyond a ban on same-sex marriage and bans same-sex civil unions and domestic partnerships. Some legal analysts have even suggested that the language of the amendment prohibits opposite-sex civil unions and domestic partnerships leaving marriage as the only legally recognizable “union.”
In eliminating domestic partnerships and civil unions, Amendment One poses serious problems for same-sex couples seeking to protect their rights relating to inheritance, child custody, property ownership and health-care decision-making. Although Amendment One seems to allow for private contracting to set forth these rights, certain agreements relating to child custody, health-care directives, death benefits, etc may not be protected unless civil unions or domestic partnerships are legally recognized. Consequently, same-sex couples in California ought to pay attention to the outcome of the May 8 vote on Amendment One, and not only for how it will impact same-sex couples in North Carolina. Amendment One serves as an important, albeit sobering, lesson for same-sex couples everywhere: it is imperative to understand what rights exist for same-sex couples in your jurisdiction and how to protect those rights. For that reason, it is useful to contact an expert in domestic partnerships as various groups continue to attempt to diminish existing protections.
To learn more, contact one of our domestic partnership attorneys.
Categories: Divorce, LGBT, Premarital Agreements