Constitution needs no marriage amendment
My column today:
North Carolina's constitution probably won't be amended this year to bar same-sex marriage.
But, if you favor gay marriage, don't applaud. That's not going to happen, either. Not for a long time, if ever. ...
A proposal to amend the N.C. Constitution "to provide that marriage is the union of one man and one woman at one time" is stuck in legislative quicksand. No matter. The measure just isn't necessary.
Existing law, which declares that "marriage between persons of the same gender" isn't valid, will withstand scrutiny by the N.C. Supreme Court, if any challenge gets that far.
The proposed Defense of Marriage amendment, meanwhile, has settled into an interesting position in the General Assembly. More than half the members of the House of Representatives and Senate are signed on as sponsors. But not three-fifths, the level needed for approval of a proposed constitutional amendment.
Even so, you'd think that majority support would at least ensure movement of the bill through committee. Not so in this case. Legislative leaders are keeping it bottled up.
No doubt, that's for political reasons. Most of the sponsors are Republicans. The last thing the Democrats in charge want is to see such a proposal decided in a statewide referendum. It would be sure to bring out lots of conservative voters, as happened last November in states where similar initiatives appeared on ballots. All passed by strong margins -- and, not coincidentally, Republican candidates from George W. Bush on down benefited.
North Carolina voters certainly would affirm the traditional view of marriage if given the opportunity. But they don't have to because lawmakers already have done so.
Concerns that judges might overturn state law are misplaced, for now. North Carolina is not Massachusetts, where the Bay State's Supreme Court ruled by a 4-3 vote in 2003 that same-sex couples had a constitutional right to marry. Our Supreme Court might vote 6-1, if not 7-0, that no such right can be found in the N.C. Constitution.
Officially, the N.C. Supreme Court is nonpartisan. Unofficially, it's comprised of six Republicans and one Democrat. Six conservative Republicans.
The one most recently elected, Paul Newby, made this statement in an interview with North Carolina Conservative: "We are witnessing an assault on our traditional family values and religious beliefs. In the past, government has recognized the importance of the role of faith and encouraged religious practice and morality. The blessings of God have made our state and our nation strong, prosperous and free. However, activist judges seem bent on removing all references to God from our culture. How long will God continue to bless a nation that renounces Him? We need judges who will respect and honor our traditional values as well as our democratic system of government."
Justice Thomas Brady's official biography describes him as a "conservative Southern Baptist."
You can believe those two will not endorse same-sex marriage.
You also can believe that gay-rights activists won't push a same-sex marriage case in front of the N.C. Supreme Court soon. They'd be asking for a crushing defeat. If they're smart, they'll wait for a change in the judicial lineup. And wait. And wait.
It likely will take a long time because voters have favored conservative judges lately. The recent switch to nonpartisan judicial races hasn't fooled them. Even without party labels, they can tell conservatives from liberals. While candidates aren't supposed to say in advance how they would decide cases, they manage to convey enough information about their "judicial philosophy" to tip off voters who want to know about such things. So, it's not likely that several new judges who are inclined to redefine marriage will be elected to the Supreme Court.
Some judges get there by appointment, however. That happens when a judge dies, resigns or hits the mandatory retirement age of 72. Then the governor appoints someone to finish the unexpired term.
Such an occasion will occur in January, when Chief Justice I. Beverly Lake Jr. turns 72. He's a conservative Republican, but Gov. Mike Easley is a Democrat. It's probable that Easley would appoint a Democrat, reducing the Republican majority on the court to 5-2. But Easley might name a moderate Democrat rather than a liberal.
If advocates of same-sex marriage want to force a change in North Carolina, they should make their pitch directly to the General Assembly. They lack the votes to win, but that would be the forthright approach.
Marriage is more properly regulated by the legislature than by the courts, anyway. If the General Assembly passed a law allowing same-sex marriage, even the conservative N.C. Supreme Court wouldn't overturn it. So no one should expect that court to strike down a law that bans such marriages.
In the meantime, our constitution can safely be left alone.
Addendums:
The Defense of Marriage bills are Senate Bill 8 and House Bill 55.
State law invalidating same-sex marriage is General Statute 51-1.2.
Biographies of N.C. Supreme Court justices are here.
Comments (12)
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Wow! We agree on something. :-)
Posted on May 4, 2005 11:06 AM
Are you OK with current state law? If you were on the bench, how would you view its constitutionality?
Posted on May 4, 2005 11:29 AM
Diego --
Interesting comments from Paul Newby. An assault on traditional family values? Removing all references to God from our culture? I dunno, seems to me that people of faith have never had so much control of our legislatures.
Also, as we consider gay marriages and civil unions and other options to recognize a committed relationship of two people, and the rights that go with that, it'd be great if we could stop treating our gay brothers and sisters as second-class citizens. Seems like there's a sin there somewhere.
Yours on the left,
Johann
Posted on May 4, 2005 3:36 PM
Doug- You did a great job on this column; and you certainly make a persuasive case that traditional marriage is not in danger of being imminently overturned by the state Supreme Court. And you make an excellent point that the supporters of gay marriage should try to get it passed in the General Assembly in a forthright manner if they want to effect a change in this state.
I still would like to see the marriage amendment pursued, however. A national effort is underway to make this change in as many states as possible; and to dramatize to the US Supreme Court how many states have taken this extraordinary step affirmatively, through constitutional means, as an expression of self-government. The idea is to make it as difficult as possible for the US Supremes to do that which they otherwise assuredly would do.
Posted on May 4, 2005 10:05 PM
Johann,
Thanks for comments. Of course no one should be treated as second-class citizens, and I don't think that's what this issue is about. Currently in North Carolina, no one is denied rights bestowed on any other person in regard to marriage. Every man has the same right to marry a woman; every woman has the same right to marry a man. Some may have different interests, but that isn't a matter of rights. The same-sex marriage debate is about whether to create additional rights.
Joe,
Thanks for posting. I understand your point but simply hope it won't be necessary to get into a constitutional debate here. Interesting comment about the U.S. Supreme Court. Do you really think the current court would overturn the traditional view of marriage, or are you worried about future courts? There certainly will be a lot to fight over when the next vacancy occurs.
Posted on May 5, 2005 8:36 AM
I think the present court, if it was to apply the logic it used in cases like Griswold and Roe and Lawrence, would inevitably overturn traditional marriage. I really have not seen any sign the Court is backing off from this line of jurisprudence. Perhaps the only circumstance this would not occur may be if someone like Harry Reid tells them, as Daschle did at the time of the Pledge of Allegiance case-- "Stop! You are killing us politically."
Posted on May 5, 2005 12:52 PM
Joe, are you kidding? You think the Supreme Court would overturn marriage laws? I think that's crazy. They barely overturned the sodomy law, and that is a very, very long way from changing marriage.
"Every man has the same right to marry a woman; every woman has the same right to marry a man. Some may have different interests, but that isn't a matter of rights."
Come on now, this argument is absurd. It's the same argument you could use to justify banning interracial marriage. You're saying to a large group of people "you still have the right to marry, but don't have the right to marry based on love."
Posted on May 5, 2005 3:18 PM
Andrew,
I'm not making an argument to justify banning interracial marriage.
I'm making an argument about equal rights. Is there a right to marry anyone based on love? What if you love two people? You do not have a right to marry them both. You might argue you should have such a right, but you can't claim you are being deprived of equal protection under the law if it is denied you, because no one else is granted that right either.
Posted on May 5, 2005 4:50 PM
If one really looks at the commandmants, the does and don'ts, the shalls and shall nots in the Bible, one finds that they are primarily for health, peace of mind, a happy, productive life. They were there for a reason. By following these simple rules, life can be a pursuit of happiness. While many laws in the Old Testament were written for the consideration of the people living in those times, much applies to us today.
We all know inside ourselves when something is right or wrong, and marriage between two person of the same sex can never be right, because anatomicaly they are not fitted for the our purpose on earth. It is pretty disgusting.
Posted on May 5, 2005 6:32 PM
P.Tesh, And how many people do you know who adhere to "our purpose here on earth"? How many do you know who have sex for procreation only? I don't think those people exist.
So what possible difference could it make to you if two people do not "anatomically fit". Please, is this the best arguement you can come up with to oppose ammending the constitution?
I do not understand what all the big hoopla is about. Live and let live is a fairly simple thing to understand. Why folks go getting their underwear in such a wad about someone else's affairs is beyond me.
There will always be people who keep the pot stirred because they think they need to mind everyone's business. If they kept their own backyards clean they wouldn't have time to go mettling in something that doesn't concern them.
Personally I don't want to be married period. Been there, done that, don't want to do it again with a man or woman. But if I was still married I can assure you two men or two women hooking up would be the least of my worries.
Posted on May 6, 2005 9:22 AM
oops! My sentence should have read "Is this the best reason you could come up with to amend the constitution?"
Posted on May 6, 2005 9:26 AM
P. Tesh --
I am curious if any of your friends, co-workers, neighbors or family members are gay? Seems harsh to say their lifestyle is disgusting.
Johann
Posted on May 6, 2005 12:14 PM