Saturday, November 26, 2011
Amendment One, Part One
"Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State."
Sigh. It's bad when lawyers write legislation, but it's so very much worse when others do. I'm going to look at this very closely over the next few posts, as I think it's terrible for the state on a number of levels.
First, some background. The amendment is the brainchild of one particular state senator, James Forrester, who had (until his death on Halloween; write your own snarky comment about the timing) a remarkable gift for saying truly bone-headed things. There are also some allegations that he padded his resume, but as in the South we don't speak ill of the dead (mostly), that controversy, much like the senator, has been laid to rest.
The amendment, however, has not. Mind you, North Carolina already has a law on the books prohibiting the marriage of anyone other than one man/one woman, so a constitutional amendment seems to be a bit of overkill. That's my first issue with it; but don't worry - it's not the only one.
Originally, the amendment contained a second sentence - one that will NOT appear on the ballot due to somebody's error.** Only the sentence I included at the top of the post will be voted on. The other, which read "This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts," is that language that was intended to guarantee that private business could extend benefits to same-sex couples (or, for that matter, unmarried hetero couples). Without that language, those protections become much murkier. This single sentence amendment also puts domestic violence protections, child custody agreements, and a host of other legal matters into muddy water for both same-sex and unmarried couples. Don't be fooled by anyone who says, "Well, that's not what it's about and it won't come up." Yes, it will and there's no clear path of which way a court will interpret the language. Let's go to Legal Lesson One.
Legal Lesson One: When it comes to interpreting language in contracts and legislation, courts look to something called the "Four Corners Rule." No, this has nothing to do with the basketball offense made famous by Dean Smith. You want a court to rule on a provision in a written document - the court is going to look at the language IN THE DOCUMENT, not the stuff that you tell the court should have been there, but gee, somehow got left out. If it's not in the "four corners" of the document, it doesn't exist and won't be brought into existence just because someone really, really wishes it was there.
So before you ask the fine folks of North Carolina to vote on an amendment, let's make sure it's the one you really mean us to vote on. There are no "backsies" in the law.
Next Post: There ought to be a law - Oh, wait, there is one! (or "Why my marriage is supposed to be threatened more by a committed gay couple than by the fact that 14-year-olds can marry in North Carolina")
*'Struth. Back in my old life working in the State and Local Tax division of a major accounting firm, I drafted legislation to be considered by another Southeastern state that was intended to grant incentives to film and TV productions doing business in the state. It's an interesting life I've led.
**For more on the winding path of the amendment, please access this link.