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Let it stand

State Rep. Dale Folwell, R-Forsyth, argues in today's Winston-Salem Journal for letting the people vote on a marriage amendment.

The legislature is likely to have quite a row over this issue when it reconvenes for a short session next month. Most Democrats are expected to oppose a constitutional amendment prohibiting same-sex marriage; most Republicans will favor it.

State law already enforces that restriction. Folwell notes that several prominent Democrats, including Bev Perdue, Roy Cooper and Joe Hackney, supported that restriction when it was enacted in 1996.

Folwell and some other Republicans contend the provision is vulnerable to overturning by state courts unless it is made part of the constitution. I seriously doubt that will happen anytime soon, if ever. It's more likely that federal courts will strike down such restrictions, which would invalidate any state constitutional provision — although that probably would require a much more liberal U.S. Supreme Court than we have today.

At any rate, there's no urgency in North Carolina to preserve our legal definition of marriage by amending the constitution — unless you think this step must be taken while Republicans are in control of the General Assembly. When Democrats were in charge, they refused to consider a bill to put this matter to a constitutional referendum.

I support the current marriage law but am not eager to see it turn into a constitutional issue. Neither our legislature nor our courts, in my opinion, will overturn current law. This is a political battle that doesn't need to happen. The people already have spoken on this issue through their elected representatives when the current law was enacted. Let it stand.
Posted by Doug Clark on Tuesday, August 30, 2011 at 9:45 am

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dcribar

August 30, 2011 - 11:42 am EDT

In the column, Rep. Folwell calls at least a dozen times for letting the people decide.

In one paragraph, he writes, "Elected officials have lost the public's trust. Voters are fed up with business as usual in politics. Pushing the decision and power to constitutionally define marriage out of Raleigh and into the voters' hands will help restore confidence in our political system and our society."

Where was his concern with letting the people decide and pushing decisions out of Raleigh when voting districts in Guilford county were being sliced and diced and Guilford residents were prohibited on voting on any changes?

People are sick of politics as usual, including transparently disingenuous attempts like the proposed amendment to draw conservative voters to the polls on election day.

Doug

August 30, 2011 - 1:00 pm EDT

Good point.

RandolphBloke

August 30, 2011 - 12:27 pm EDT

Civil rights should never be put to a vote by the public. If we had done this for racial issues, women voting, etc. we'd still be stuck in the 1800s. One of the great things about this country is that we've generally refrained from letting that happen. Why the current crop of legislators wants to waste valuable time doing this is beyond imagination. They need to be focused on things that matter.

Doug

August 30, 2011 - 1:01 pm EDT

Defining marriage is not a civil rights issue.

dcribar

August 30, 2011 - 1:44 pm EDT

Doug:

Huh? The amendment would affect people's right to marry and would eliminate people's 14th amendment rights to equal protection under the law. The state court decisions that have shot down restrictions on gay marriage have done so on civil rights grounds.

Doug

August 30, 2011 - 1:57 pm EDT

I'm stating my opinion. Courts in a handful of liberal states have taken the position you state, some of them in split decisions. The equal protection argument is legally controversial and proponents of it don't dare raise it in most states for fear of losing. I see it as a faulty argument because "marriage equality" already exists: everyone has an equal right to marry an unrelated person of the opposite gender.

Marriage is still not a civil rights issue because there's no basic right to marriage. Government could cease to recognize marriage tomorrow and no one would have a valid claim that his or her constitutional rights were violated.

Panacea

August 30, 2011 - 2:25 pm EDT

Except that many other rights are tied up in legal institutions related to marriage: inheritance rights for example.

If I were married to a man, and I died, he would inherit my property.

If I were married to a woman under current law, and I died, my brother would inherit my property. It wouldn't matter if I and the hypothetical wife had spent 25 years building a life togethe, buying a home, furniture, saving and investing. She'd have no rights at all, especially if I neglected to write a will or place my property in a living trust.

As an ER nurse, I once had to force a distraught partner out of the Emergency Room when a patient was dying at the insistence of the patient's parents, who never accepted that their son was gay and never accepted the partner. He had no spousal rights of visitation, and when the parents said he had to go, we had no choice. He had to go. Neither his nor our pleading with the parents made any difference.

I still feel terrible about it. What the patient wanted never got addressed.

So please, Doug, don't tell me civil rights are not an issue. They are very much the issue.

Doug

August 30, 2011 - 2:38 pm EDT

There are many sad stories of such injustices. Some could involve heterosexual unmarried couples. Some may involve lifelong friends. Some may involve grandparents who are cut off from their grandchildren. Every possible situation of that kind can't be addressed by some change in law or by a new finding of rights by the courts.

If you want someone unrelated to you to inherit your property, write it in your will. Make other legal provisions to the extent allowed by law. Or take your case to your legislature if you think there's public support for the change you propose.

At this point, North Carolina has not established same-sex marriage as a matter of equal protection. It is nowhere near doing so.

Panacea

August 30, 2011 - 6:40 pm EDT

You're right that the law can't fix every injustice.

But it can easily fix the injustice of denying committed, monogamous couples of the same gender the right to support each other through good times and bad simply by allowing them the same right heterosexual couples have through the legal process of marriage.

The one thing that no one can ever explain is, why is it bad for same sex couples to marry? How does that injure the rights and well being of heterosexual couples, or anyone else?

Since no one wants to say, "because I find it icky," the default defense is "because the Bible says so."

And that's not a reason to give one group (heterosexuals) a right or a priviledge, and not give it to another group (homosexuals).

Doug

August 31, 2011 - 8:29 am EDT

My answer to your unexplainable question is what RandolphBloke says below. The inevitable outcome of this will be that government does away with state-sanctioned marriage. The same arguments in favor of same-sex marriage apply to polygamy or marriage between close relatives, or any other marriage that might be created to bestow certain legal privileges. Why deny any individual, couple or group of people from securing the same benefits? Rather than follow that route to its logical conclusion, it will be simpler and easier for government to cease recognizing the institution of marriage altogether. I won't welcome that outcome but I will understand it.

RandolphBloke

August 31, 2011 - 7:09 pm EDT

I agree re: polygamy. Honestly, I don't care one way or another about it. I don't see the harm in *consensual* polygamy of adults. I don't think there's an even decent % of the general population that wants it either. I'd imagine it to be far less than 1%.

The "if you approve this, THAT will happen" argument is not compelling though. This is the line that the religious right often resorts to parroting: "what's next, bestiality, etc. ?" So, with regards to your marriage of close relatives I think that's similar fear mongering. There's a legitimate reason, biologically, for not allowing that due to potential birth defects of offspring. Marrying from first-cousins and more distant is already allowed in some areas. (And oddly enough seems to not be the genetic minefield we might think it is according to some studies I've seen in the past few years.) Offspring from relations of a closer nature are very likely going to suffer for it, thus the legal protections.

Panacea

August 31, 2011 - 8:27 pm EDT

Bestiality involves animals, who cannot provide informed consent. Ditto children.

People who throw that out are creating a strawman to divert attention from the real issue: that there is not reason for gays not to marry.

The simplest solution is to allow everyone to marry. Easier from a logistical standpoint, too. And what will eventually happen.

Gays are slowing gaining real rights in this country, as well they should.

Doug

September 1, 2011 - 8:30 am EDT

I agree that arguments saying this will lead to marriages between humans and animals are insulting to anyone's intelligence.

Your argument against a marriage between close relatives, however, echoes what opponents of gay marriage say: that marriage is meant for procreation. Obviously, it doesn't have to be. Marriage doesn't require a sexual relationship at all. It can be simply a legal arrangement aimed at securing certain rights. There may be a benefit for two spinster sisters to "get married." How could they be legally denied as long as we're already fundamentally changing the definition of marriage?

satyra

September 1, 2011 - 5:34 pm EDT

Sisters already have legal rights as kin. Non-familial homosexuals do not. And, if marriage is for children (to those who say it is) then I guess we should ban all menopausal women from getting married. Maybe we should sperm-check men, too. Make sure everyone's fertile and properly virile. Otherwise, no marriage for you!

dcribar

August 30, 2011 - 2:44 pm EDT

Doug:

Is Iowa a liberal state? It's Supreme Court voted unanimously to grant equal rights in marriage. The judges included some appointed by the state's Republican governor.

Applying your (il)logic, anti-miscegenation laws should also pass constitutional muster because everyone would be have an equal right to marry someone of their own race.

Doug

August 30, 2011 - 2:52 pm EDT

I would consider Iowa a liberal state.

Race is not the same as gender. For one thing, our census forms don't list a category for mixed gender.

So you think North Carolina's marriage law is unconstitutional? You should have no trouble, then, pointing to a single sitting state judge who agrees with you.

And are you really saying it is illogical to define marriage as a union of one man and one woman?

dcribar

August 30, 2011 - 3:28 pm EDT

Doug:

Your equal-treatment argument mirrors the U.S. Supreme Court's earlier 1881 argument upholding anti-miscegenation laws in Pace v. State:

"The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person. The two sections of the Code cited are entirely consistent. The one prescribes generally a punishment for an offense committed between persons of different sexes; the other prescribes a punishment for an offense which can only be committed where the two sexes are of different races. There is in neither section any discrimination against either race. Section 4184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4189 applies the same punishment to both offenders, the white and the black. Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated, and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same."

In decisions in 1964, 1967 and 1973, the Supreme Court reversed this egregious opinion. At some point, the U.S. Supreme Court will also extend marriage civil rights to the GLBT community.

Doug

August 30, 2011 - 3:37 pm EDT

Dave, the same argument does not always apply to different circumstances and conditions. I repeat what I wrote before: race is not the same as gender. As another obvious example: we cannot legally require people of different races to use different public restrooms. We can do so for people of different genders.

You may be right in your opinion about what the U.S. Supreme Court eventually will do, or you may be wrong. A long, long time will tell. However, your argument does not have even the tiniest toehold in North Carolina.

Andrew Brod

August 30, 2011 - 4:14 pm EDT

Okay, so "race is not the same as gender." I agree, but just saying that doesn't exclude gender from the realm of civil-rights issues. Race is also not the same as religion, and yet I think you'd agree that religious bigotry can be a civil-rights issue.

Similarly for your point that marriage isn't an inalienable right. The usual comparison here is to driving. Driving isn't a right, and yet if everyone except a particular group is allowed to drive, it's potentially a civil-rights issue. If everyone except a particular group is allowed to marry, then yes, it's potentially a civil-rights issue. Your not liking that doesn't make it any less true.

Oh, and Iowa is a liberal state? That'd be a surprise to Iowans.

Doug

August 30, 2011 - 4:29 pm EDT

Andy, agreed. The fact that I do not see parallel legal issues in regard to race and gender doesn't mean there aren't, and the fact that you do see parallel legal issues does not mean that there are. These are contested questions, at least in some places. To this point there are relatively few jurisdictions where your view has prevailed. There are many more jurisdictions where the question will not be raised for fear of a likely adverse outcome. Certainly, legislatures can take this matter into their own hands, which I see as the more appropriate forum, and bypass the constitutional questions. I'm not aware of any legislative effort afoot to rewrite the law in North Carolina, however. So, like myself, the entire Democratic political establishment in this state must be happy with the status quo..

Abner Doon

August 30, 2011 - 10:26 pm EDT

What Andy said.

RandolphBloke

August 30, 2011 - 11:16 pm EDT

I do see it as a civil rights issue so we can agree to disagree.

That said, I'd have no problem if the state got entirely out of the marriage business altogether and issued ONLY civil unions for any consenting adults that request them.

For years it was illegal to marry someone outside your own race. They had an equal right to marry an unrelated person of the same race and opposite gender. That was found to be unfair and illegal and was handled appropriately.

Had we voted to do that, it would never have changed. The majority will very, very rarely vote for equal rights for minorities of any types.

Connie Mack Jr

August 30, 2011 - 3:33 pm EDT

The people already have spoken on this issue through their elected representatives when the current law was enacted. Let it stand* Doug

Right! And lets return to Slavely to settle this issue forever. No more Black Gays should married each other without approval of their Republican Police State Masters.. So Doug! How do you feel about Gay escape Alien Lizards from Area 51 marrying each other in Vegas on the weekends?

satyra

August 31, 2011 - 3:47 pm EDT

I saw this on Facebook today. I couldn't have said it better myself:

:So, let me get this straight ... Charlie Sheen can make a 'porn family', Kelsey Grammer can end a 15-year marriage over the phone, Larry King can be on divorce #9, Britney Spears had a 55-hour marriage, Jesse James and Tiger Woods (while married) were having sex with EVERYONE. Yet, the idea of same-sex marriage is going to destroy the institution of marriage? Really? Re-post if you support equal rights (and are opposed to absurd hypocrisy)"

I think that pretty much nails it.
-S

Doug

August 31, 2011 - 3:55 pm EDT

Clever, but judging any social institution only by its failures isn't a sound approach.

satyra

August 31, 2011 - 5:32 pm EDT

What it means is that everyone should have the same opportunity to try marriage and potentially mess it up. It also means that the "institution" isn't something idyllic that making it accessible to same-sex couples would "ruin." That's often the argument, is it not? I mean what's really the problem, here?

Doug

August 31, 2011 - 5:40 pm EDT

The issue to me is that we shouldn't turn marriage into anything anyone wants it to be. The fact that it is frequently messed up doesn't argue for allowing many more ways to mess it up.

satyra

September 1, 2011 - 5:28 pm EDT

How would we be turning it into something else? Please be specific.The same rules and laws would apply. And, with all due respect, saying that we "shouldn't turn marriage into anything anyone wants it to be" sounds demeaning to homosexuals. We are clearly denying freedom to a specific part of the population that another has. If that's not out and out discrimination, I don't know what is.

Anti-miscegenation laws were found unconstitutional. Anti-homosexual laws should be, too.

I mean could you really look another human in the eye (who happens to have a different orientation than you) and say "You are not worthy or deserving of marriage?"

Doug

September 1, 2011 - 5:51 pm EDT

Would you look a polygamist in the eye and say you don't support legal marriage involving three or more people? Is that a discriminatory attitude? Or are you for any marital relationship that anyone wants to enter into? If you deny anyone, you can be accused of discrimination.

I am not saying to anyone he or she is not worthy of marriage. I'm saying, this is how marriage is defined. You're welcome to it.

Any institution must have boundaries or else it has no meaning. Your arguments would lead to the elimination of boundaries and thus to the elimination of the institution.

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