The Paradox of the NC Marriage Amendment
By Catherine Hopkins of Vilas, North Carolina, April 6, 2012
According to “The North Carolina Manual” our state government has acted consistently on the premise that the purpose of a State Constitution is two-fold: (1) to protect the rights of the individual from encroachment by the state; and (2) to provide a framework of government for the state and its subdivisions.1 Unfortunately, this Amendment fulfills neither purpose.
The first line of our North Carolina State Constitution affirms existence of civil, political and religious liberties, and a need to preserve them. In order to establish the essential principles of liberty and free government, the very first Article of our North Carolina Constitution is the Declaration of Rights.
The very first Right therein affirms the equality of all persons, along with certain inalienable rights – including liberty and pursuit of happiness. Soon thereafter is the right of all persons to equal protection of the laws. In 1967 under Loving v. Virginia, the US Supreme Court affirmed: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the basic civil rights of man.”
The Supreme Court decision on Loving v. Virginia articulates also the very importance of the fundamental freedom of choice of whom we may marry. At issue in the case was Virginia’s ban on marriage for interracial couples per state statute. The ban was found to violate the principle of equality and the right to equal protection under the law for all the citizens of the state.
Clearly, it has long been established by the US Supreme Court that marriage is a very fundamental personal right. And yet, interestingly, NC’s proposed marriage amendment would NOT enter our constitution under the Article of Rights. Since it’s not to be under Rights, and it fits none of the governmental framework Articles, it is proposed to be entered into Miscellaneous Articles.
Perhaps the amendment’s proponents realize they cannot insert into our NC Declaration of Rights a specifically articulated marriage “right” restricted to opposite-gendered couples — while simultaneously forbidding all same-gendered couples’ rights to any equivalent domestic legal union.
Wherever it would land though, as written this amendment’s clear inequality for legal relationship status – and lack thereof – is directly subversive to our state constitution’s fundamental principles of equality and liberty, and also to rights for pursuit of happiness and equal protection under the law.
As someone who had never read our state constitution prior to learning of this proposed amendment, I was further struck by the paradox of what inspired my read, when I discovered the reminder in the Rights: “A frequent recurrence to the fundamental principles is absolutely necessary to preserve the blessings of liberty.” This reminder is poignant prior to the May 8th vote.
Liberty, you know, as in a right or privilege protected by the constitution. Liberty – the state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behavior, or political views. Or simply the freedom to chose among alternatives as to how to order our lives.
The paradox? That proponents of this constitutional amendment would seek to simultaneously forbid recognition of any equivalent domestic legal union for citizens already forbidden under existing state statute from the vital right of marriage simply due to their life partner’s gender while specifically protecting only heterosexual marriages under our state’s constitution: a clear contradiction to both principles of liberty and equality.
The NC state constitution, paradoxically, is the sole document charged with protection of the individual liberties and rights equally for all (meaning all) citizens of North Carolina, not solely for persons of any certain orientation.
To those opposed to, or undecided on gay-marriage, never fear: even a vote AGAINST this amendment is NOT a vote for gay-marriage. In fact, even a vote AGAINST the amendment will still uphold existing statutes forbidding gay marriage. It would just stop us short from forbidding any and all other alternative forms of domestic legal union for couples forbidden to marry.
1 –John J. Parker, Chief Judge of US Court of Appeals (1925-58)
Written By Catherine Hopkins of Vilas, North Carolina on April 6, 2012