Filed under: Amendment One
LGBT cases could be headed to the Supreme Court soon.
Continue October 9, 2013 1 Comment
By Jacob Combs
Yesterday, Chapelboro.com, a website affiliated with Chapel Hill, North Carolina’s WCHL radio station, reported that the University of North Carolina School of Government has released a report concluding that the passage of Amendment One, which modified the state constitution to recognize marriage between men and women as the only “domestic legal union,” does not mean municipalities cannot provide domestic partnership benefits.
The report, authored by Associate Professor Diane Juffras, argues that the amendment’s wording prohibits the recognition of gay and lesbian couples, but makes the case that providing benefits does not constitutite recognition per se. Says Juffras:
“There is no legal precedent in our states law or in any states law for the idea that for a government employer to offer domestic partner benefits gives legal recognition to a union; and more importantly, does what the point of legal recognition is confer rights and responsibilities on a couple under the law.”
Chapel Hill Mayor Mark Kleinschmidt says the UNC report lays the groundwork for a strong legal argument should any litigation against the amendment (or against employers who decide to offer domestic partnership benefits) arise in the courts. The city has no plan to stop offering the domestic partnership benefits it provides its municipal employees.
Amendment One was always headed towards the courts, since its poor, overly-broad wording opened up a host of legal questions about the truth breadth of the amendment and its effect on pre-existing relationship rights for gay and lesbian North Carolinians. In the past, courts have been averse to the idea of taking rights away from groups that already enjoy them. But in North Carolina, the battle over that very question continues.
Supreme timing, part 4: Why it’s better for DOMA to be heard at the Supreme Court before the Prop 8 trial
By Jacob Combs
Yesterday, in Part 3 of this series, I wrote about the different effects that a Supreme Court decision striking down DOMA would have on the status quo of American marital law as compared with a decision striking down Prop 8. In that post, I argued that because DOMA upended the previous status quo and inserted the federal government into marriage law, which has traditionally been the jurisdiction of state governments, a Supreme Court ruling striking DOMA down would show judicial restraint, allowing the states to fully function as ‘laboratories of democracy’ and provide full marriage rights to gay couples if they wanted to.
I also argued that a decision striking down Prop 8, on the other hand, even if it followed the Ninth Circuit’s narrow ruling limiting the effect of the decision to California only, would involve the Court’s wading in to the unprecedented territory of whether state electorates can use popular votes to take away rights from a specific class of citizens. Because of this, I wrote that it would be best for the Supreme Court to consider DOMA and strike it down while declining any review of Prop 8, allowing the Ninth Circuit’s decision to bring marriage equality back to California while giving the narrowest possible effect in the country at large.
At first glance, this may seem like a frustrating outcome for marriage equality advocates, and it is admittedly a more limited outcome than many of us would desire. But as I wrote yesterday, it seems unlikely that the current Supreme Court, given its make-up, would be ready, in 2012 or 2013, to make a broad 14th Amendment case for marriage equality and strike down over 30 marriage bans on the books across the U.S.
A Prop 8 ruling limited to California would be a major victory, restoring marriage equality to the largest state in the union. But, even more importantly, a decision striking down DOMA could end up setting the groundwork for successful marriage equality litigation in the future. Today, I will make the argument for why a Supreme Court decision striking down DOMA could change our movement’s entire strategy going forward. (more…)
By Jacob Combs
The conventional wisdom on African-American voters and marriage equality goes something like this: because of deeply held religious beliefs, a commanding majority of black voters oppose marriage rights for gays and lesbians, and when such rights are put up to a vote of the people, African-Americans consistently turn out to vote against them. That narrative was frequently put forward in the analysis that followed the passage of Amendment One in North Carolina, including coverage by NPR and the Charlotte Observer.
But as Barry Yeoman pointed out last week in an article for The American Prospect called “Town and Country,” the real divide in North Carolina wasn’t along racial lines, it was urban vs. rural. As Yeoman points out, it’s impossible to know exactly how how black voters in the state voted on the amendment, since no exit polls were conducted and precincts are almost never single-race. But when you take a closer look at the data, what becomes clear is that urban voters broke against the amendment and rural voters broke for it, and those breakdowns, it turns out, cut across racial lines:
In each of North Carolina’s five largest cities, voters in majority-black precincts rejected the measure: Charlotte (52 percent), Raleigh (51 percent), Greensboro (54 percent), Winston-Salem (55 percent), and Durham (65 percent). Durham’s results were dramatic: Not a single majority-black precinct supported the amendment. Several crushed it by margins of 3-to-1 and even 4-to-1.
Once you move out of the Research Triangle of Raleigh, Durham and Chapel Hill, and North Carolina’s other major cities, like Charlotte, the state’s electoral geography is very different, comprised primarily of small, rural towns which voted overwhelmingly for the amendment. Many of these towns are isolated and have low levels of education but, as Yeoman describes, they differ dramatically when it comes to race. Eighty-nine percent of Graham County, located in the Blue Ridge Mountains and containing exactly one black voter, voted yes on Amendment One. Bertie County, with a 60 percent black population, voted 73 percent yes.
But even in rural North Carolina, Yeoman writes, there were “islands of resistance”:
The amendment failed 2-to-1 on the African-American side of Scotland Neck, a village that has witnessed forty years of civil-rights struggles stretching from a landmark school-desegregation case in the 1970s to the recent stun-gun death of a black bicyclist. The result, says former Mayor James Mills, is an “organized and sophisticated” black electorate. “We were able to communicate was that this really had nothing to do with same-sex marriage,” he says. “What this has to do with is hate.” The measure also failed, albeit narrowly, in a black precinct of nearby Warren County, where in the 1980s hundreds were arrested during protests against a PCB landfill that sparked some of the earliest discussions about environmental racism.
When Proposition 8 passed in California in 2008, exit polls showed that a full 70 percent of black voters in the state voted yes on the ballot measure, even while supporting Barack Obama’s bid for presidency. The only problem was that those exit polls greatly over-exaggerated the numbers. An analysis of precinct level voting in Alameda, Los Angeles, Sacramento, San Diego and San Francisco counties (which collectively account for almost two-thirds of the state’s African-American voters) showed that black support for Prop 8 was more likely somewhere around 58 percent. That was still higher than the average 52 percent support for the measure amongst all voters, but it’s a far cry from 70 percent.
What this demonstrates is that there is an opportunity for marriage equality gains to be made through outreach with urban black communities and perhaps even the religious leaders of these communities. Yeoman’s analysis muddies the pat logical conclusions that argue that African-Americans are predominantly opposed to marriage equality, and reveals that the true divide for these type of ballot questions is one of geography and not race. That could make a difference going forward, especially in states like Maryland, where the African-American community is likely to have a great impact on the success of marriage equality later this year.
By Jacob Combs
In his thoughtful piece from this morning, Adam laid out a cogent analysis of what happened in North Carolina on Tuesday and made the important argument that our work there as a community was both effective and significant. I think Adam has done a great job of reflecting on Amendment One, and rather than rehashing his arguments here (which I happen to agree with), I thought I would look a related issue that has been making its way through the blogosphere lately: the Democratic National Convention, which will be held in Charlotte, North Carolina.
Writing yesterday in National Journal, George Condon, Jr., points out that Charlotte and the Democratic Party are not the most usual of bedfellows. There are many reasons for this, all of them worth paying attention to: an unpopular Democratic governor retiring after her first term, a sexual harassment scandal that forced North Carolina Democratic Party executive director Jay Parmley to resign his position, the inelegant fact that Barack Obama will accept the party’s nomination at the Bank of America stadium. Add to that the fact that the convention is apparently well short of its fundraising goal, and Charlotte begins to look like a pretty unfortunate location for this year’s convention.
And then there’s Amendment One. Marriage equality has been making huge headlines this week, first with the passage of the anti-gay constitutional amendment in North Carolina, and then with President Obama’s endorsement of full marriage equality for gays and lesbians. Not surprisingly, there are many who feel that a state which just stripped gay and lesbian couples (and straight couples, for that matter) of rights that they already enjoyed is not the right place for a convention to be held by a party whose leader now supports marriage equality and whose platform very well might be amended to say the same this September. A change.org petition started just after Tuesday’s vote to move the convention out of the state already has more that 29,000 signatures out of a goal of 30,000.
These are valid concerns, and I don’t mean to minimize them in any way. But I do want to pick up on an element of Adam’s argument and take it further to apply to the convention. It may be a devil’s advocate argument, but I believe that Amendment One’s passage makes it even more important, not less, for the Democratic Party to hold its convention in Charlotte this September. (more…)
By Scottie Thomaston
Last night the odious Amendment 1 passed in North Carolina. Rural counties with typically conservative voters passed it overwhelmingly while areas with a liberal and racially diverse population split different ways, with some heavily pro-Obama precincts from the 2008 election voting in favor and a few opposed. Throughout the campaign the opponents of the amendment pressed the claim that since the language says the “only domestic legal union” that would be “valid or recognized” in North Carolina is marriage between a man and a woman, it would ban attempts to have civil unions in the future and eliminate existing domestic partnerships and benefits. Unswayed by those arguments, voters opted to put the ban in the state constitution.
The fall out was immediate:
Bill James held off an aggressive challenge from Ed Driggs to win the GOP primary for the District 6 seat on the Mecklenburg Board of County Commissioners, with the eight-term incumbent commissioner capturing nearly 52 percent of the vote.
…James is already pushing Mecklenburg to scrap its policy that provides domestic partner health insurance benefits to employees in same-sex relationships. The county has been offering same-sex benefits to employees since commissioners approved the policy in 2009.
He argues they should not waste scarce resources that will probably end up being litigated eventually anyway, and they would face losses because of the amendment’s language. These benefits are only one facet of the benefits provided to couples who were formerly in domestic partnerships in the state until last night. Aside from benefits provided to couples, there are benefits for children’s health insurance that could end of affected. There are also protections against domestic violence that could be eliminated, since the statute in North Carolina’s code regarding domestic violence protections refers to certain defined types of relationships that are “recognized” and now they will not be recognized.
CBS News reported on what could happen now:
The amendment likely would affect issues other than gay marriage the most because the “marriage-plus” amendment approved in North Carolina prohibits not only same-sex marriage, but also same-sex civil unions. Nineteen states have such amendments, Dinan said.
For example, a handful of local governments provide benefits to employees who are involved in same-sex relationships. In Michigan, the state’s highest court ruled that an amendment did affect those benefits, Dinan said. But in North Carolina, officials in Durham and Orange counties have said they don’t expect to have to eliminate those benefits because of the amendment, he said.
Opponents had said they feared the law could affect domestic violence protections, some of which refer to people who live together. Dinan said he doubted that would happen, although Ohio had a three-year court fight over the issue before the Supreme Court ruled the laws weren’t affected.
The proponents of the amendment had campaigned on the claim that the amendment only defines marriage as between a man and a woman. Their ads even specifically made that direct claim, while at the same time citing research on their own website that refutes the claim and admits the amendment bans civil unions and domestic partnerships. These questions will need to be litigated:
“The screaming, excruciating paradox of all this is that supporters wanted to take this out of the judges’ hands. Clearly it will have the opposite effect,” Munger said. “…There will be litigation, and judges will have to decide what the darn thing means.”
Aside from the legal ramifications, there are implications for the larger LGBT rights movement. North Carolina is a southern state, and a lot of the national LGBT organizations did not want to get involved in the region to stand alongside LGBT southerners and fight back. Many organizations and many LGBT donors and allies completely abandoned those of us who live here in the South and are working to change the hearts of our neighbors. There are LGBT people struggling all over the country, not just in politically convenient areas with demographics that point to relatively easy victories; and for those of us who are stuck in a region where we lose more often than we see gains, it’s particularly hurtful to see allies stand aside and watch these things happen to us. Part of the reason I have been so invested in North Carolina is I live in the South, in south Alabama. I know what it means to feel like no one is paying attention and watch our allies grow silent as these things happen to our brothers and sisters.
I agree with our own Adam Bink:
Adam Bink, the director of online programs at the Courage Campaign, a group that has been working to get voters to the polls in recent weeks, says that the movement can’t afford to give up on gay couples who don’t have the relatively good fortune to live in Minnesota or Maine.
Said Bink, “I think it’s really important that we don’t leave any state behind.”
This isn’t over, in North Carolina or anywhere else.
More in the extended entry…