The Issue That Will Not Go Away
An Update on the Battle Over Marriage Redefinition

Family North Carolina Magazine—Spring 2010

By Alysse ElHage

“Haven’t we waited long enough?”¹

That provocative question was featured on a Greensboro billboard in 2009 beneath the photos of four same-sex couples in long-term relationships. Sponsored by the Triad Equality Alliance, a local homosexual advocacy group, it was part of a five-year billboard campaign launched in 2004 to “open minds; change minds and hopefully one day eliminate prejudice wherever it survives.”² While the billboard was obviously meant to promote marriage redefinition in our state, ironically, that same question could be posed by the voters of North Carolina to the leadership of the General Assembly, which has repeatedly denied them the opportunity to consider a constitutional amendment preserving marriage as the union of a man and a woman.

In March, the District of Columbia began issuing marriage licenses to same-sex couples, shortening the distance that homosexuals from North Carolina need to travel to get legally “married,” and increasing the possibility of an eventual battle over the issue in our courts.³ D.C. now joins five states (Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire) in redefining marriage to include same-sex couples.⁴

As the number of same-sex couples who get legally “married” increases nationwide, so does the threat to the marriage laws of every state, especially states like North Carolina that lack Marriage Protection Amendments (MPA). The voters of 30 states—including our neighbors in South Carolina, Tennessee, Georgia and Virginia—have had the opportunity to vote on and adopt MPAs.⁵ North Carolina stands out as the only state in the southern United States whose citizens have been prevented from doing so as a direct result of legislative inaction.

Last summer, for the sixth consecutive year in a row, the General Assembly closed the legislative session without considering legislation that would give North Carolinians the opportunity to vote on a MPA.⁶ As in previous sessions, the leadership of both chambers refused to allow the bills to be brought up for consideration. But this May, when the “Short” legislative session convenes in Raleigh, state lawmakers will get another chance to consider legislation that would place the MPA question on the ballot for the people of North Carolina to decide.⁷

Following is an update on the latest victories and losses in the nationwide battle over marriage redefinition, and an explanation of why it is getting tougher for North Carolina lawmakers to ignore the looming threat to our marriage laws, and the will of the people.

A Perspective for North Carolina
The leaders of the North Carolina House and Senate have consistently defended their inaction on the MPA by arguing that same-sex “marriage” is simply not an issue for North Carolina, pointing to the state’s strong marriage laws, including a Defense of Marriage Act (DOMA) that specifically defines marriage in our state as only between a man and a woman.⁸ Meanwhile, the strong marriage laws of other states, such as Iowa, have proven to be no match for activist judges or politicians intent on overturning them. In 2009 alone—while the MPA bills sat untouched in the General Assembly—same-sex “marriage” was legalized in four more states (Iowa, Vermont, New Hampshire and Maine) plus D.C., although Maine’s law was eventually repealed by its citizens.⁹ In every one of these states and D.C., the redefinition of marriage has been achieved only through the courts or by legislative action—never by a vote of the people.

D.C. began issuing marriage licenses to same-sex couples on March 3, 2010, as the result of a marriage redefinition law passed in December 2009 by the D.C. City Council and signed into law by the mayor. Although Congress had the authority to overturn the law during a 30-day review period, it chose not to act.¹⁰ Efforts to get the marriage redefinition law on a referendum so that the people of D.C. could decide its fate—including a lawsuit filed by the Alliance Defense Fund (ADF) and Stand for Marriage D.C., and a last minute appeal for the U.S. Supreme Court to intervene—were not successful before the law went into effect.¹¹ However, the legal battle in D.C. is not over. A separate lawsuit filed by ADF and Stand for Marriage D.C., which is seeking a ballot initiative that would give voters the opportunity to define marriage in D.C. as the union of one man and one woman, is currently before the D.C. Court of Appeals.¹² Additionally, legislation has been introduced in Congress that would stop the distribution of marriage licenses to same-sex couples until D.C. residents can vote.¹³

New Hampshire began issuing marriage licenses to same-sex couples in January 2010, as a result of a marriage redefinition law passed by the state legislature and signed into law by the governor in June 2009.¹⁴ Like North Carolina, New Hampshire had a DOMA law on the books since 2004, but it was not enough to stop the legislature from enacting a new law redefining marriage. So far, attempts in the state legislature to repeal the law, or give the citizens of New Hampshire a chance to vote on a MPA, have failed.¹⁵

Vermont became the first state in the nation to redefine marriage through legislative action instead of a court ruling in April 2009.¹⁶ The successful enactment of a marriage redefinition law in Vermont was not a big surprise. Back in 2000, the state was the first in the nation to legalize “civil unions,” which grant unmarried homosexual and heterosexual couples all or most of the same rights and privileges as married couples, and weaken the institution of marriage in the process.¹⁷

Iowa. As in Massachusetts (2004) and Connecticut (2008), the legalization of same-sex “marriage” in Iowa occurred through the courts. On April 3, 2009, the Iowa Supreme Court struck down the state’s DOMA law as “unconstitutional,” ruling in Varnum v. Brian that the denial of marriage licenses to same-sex couples violated the equal protection clause of the state constitution.¹⁸

What happened in Iowa is significant for a number of reasons. Like North Carolina, Iowa had a DOMA law on the books, but lacked a constitutional amendment defining marriage as only between a man and woman, leaving Iowa’s marriage laws vulnerable to redefinition by the courts. The Iowa Supreme Court also went out of its way to redefine the nature of parenting and family in the ruling, dismissing the vast body of social science evidence that children fare best in an intact married family.¹⁹ Additionally, the court’s decision referred to previous legislative actions by the Iowa legislature, which added “sexual orientation” as a protected class in education, hate crimes, employment, and other state laws.²⁰

What a Difference the People Make
While homosexual activists were successful at redefining marriage in D.C., New Hampshire, Vermont, and Iowa in 2009, traditional marriage proponents managed to reverse or hold back similar efforts in Maine, New York, and New Jersey. What made the difference in each of these states was the willingness of citizens to make sure their voices were heard—either by voting at the ballot box or by contacting their lawmakers.

Maine. Last November, the citizens of Maine voted to repeal a law that, at the time, would have made their state the sixth in the nation to redefine marriage to include homosexual couples. Maine voters were asked in a November 2009 referendum whether or not they wanted to reject the new law, which was enacted by the state legislature in May 2009. The majority (53 percent) voted “yes” in favor of repealing the law.²¹

Maine’s rejection of same-sex “marriage” is significant for two reasons. First, it occurred in a politically liberal state located in an area of the country—New England—where homosexual activists have been successful at redefining marriage. Second, the historic vote makes Maine the 31st state in the nation to reject the redefinition of marriage in a vote by the people (30 other states have taken the issue to voters in the form of MPAs). Maine is further evidence that when the question of redefining marriage is taken out of the hands of politicians and presented directly to the American people, it is soundly rejected.

New York. In December 2009, an attempt to pass a marriage redefinition bill failed in the New York Senate by a vote of 38 to 24, after passing in the House.²² New York is one of two states and D.C. that recognize same-sex “marriages” performed in states where it is legal.²³

New Jersey. In January 2010, the New Jersey Senate rejected a marriage redefinition bill by a vote of 20 to 14.²⁴ The vote represents another major victory for traditional marriage advocates in a state where civil unions have been legal since 2006, after the State Supreme Court ruled that the legislature had to legalize same-sex “marriage” or civil unions within six months in order to comply with the equal protection clause of the state constitution.²⁵ Homosexual advocacy groups in New Jersey have stated that they intend to go back to the courts to force marriage redefinition on the state.²⁶

Maggie Gallagher is president of the National Organization for Marriage (NOM), a nonprofit advocacy group that sponsored voter education drives, and television and radio ad campaigns in support of traditional marriage in both New Jersey and New York. She says the people deserve the credit for holding back marriage redefinition in both states.

“A large number of voters called up their elected representatives and said ‘don’t vote for gay marriage,’” Gallagher says. “We have a majority. We just have to activate it.”²⁷

California: The People’s Right At Risk
Both sides of the marriage redefinition battle are closely watching the Proposition 8 trial in California, which is currently making its way through the courts. The case, Perry v. Schwarzenegger, involves a challenge to Proposition 8, the marriage amendment adopted by a majority of California voters by referendum in November 2008. The approval of Proposition 8 overturned a May 2008 decision by the California Supreme Court legalizing same-sex “marriage.” Several lawsuits were filed against Proposition 8 after it passed, and the California Supreme Court upheld the constitutionality of the measure in May 2009. However, homosexual activists filed another lawsuit against Proposition 8 in the U.S. District Court Northern Division in the Perry case.²⁸

According to ADF, “A federal court decision overturning Proposition 8 would bring additional years of chaos and confusion in the legal battle to preserve marriage. It could impact marriage laws in up to 45 other states—including the 30 states where voters overwhelmingly adopted state constitutional amendments—along with eliminating the right of Californians to reaffirm marriage in their state constitution.”²⁹

Additionally, ADF warns that the Perry case could have negative repercussions on religious freedom, specifically, “whether voters may freely consider their own moral and religious views about marriage—or any other subject—when casting their ballots, or be forced by violence and intimidation to remain silent about their deepest convictions.”³⁰

A decision in Perry is expected this spring. Both sides agree that regardless of how the district court rules, the decision will be appealed to the 9th Circuit Court of Appeals, and more than likely to the U.S. Supreme Court.

An Increasing Threat for North Carolina
To date, there has only been one direct legal challenge to North Carolina’s marriage laws—in 2004, when a homosexual couple filed a lawsuit in District Court against Durham County, after being denied a marriage license by the County Register of Deeds. The lawsuit was ultimately dismissed.³¹ But homosexual advocacy groups are working to weaken the institution of marriage and the family in our state in more indirect ways. The attack on marriage is occurring in a number of areas, including:

Recent court decisions recognizing same-sex relationships in ways that our laws never have before, such as rulings that grant parenting rights to non-biological homosexual partners;³²

The passage of the School Violence Prevention Act last year, which inserted the terms “sexual orientation” and “gender identity” into North Carolina law for the fist time, giving homosexual activists the opportunity to influence future generations about marriage;³³

The adoption of domestic partnership policies by an increasing number of counties, cities and towns throughout the state (so far, Mecklenburg, Orange and Durham counties, and the cities/towns of Durham, Greensboro, Chapel Hill, and Carrboro;³⁴

Efforts to get “sexual orientation” added as a protected class to local government non-discrimination policies, as well as efforts to pass a state-level employment nondiscrimination law that includes protections for “actual or perceived sexual orientation or gender identity.”³⁵

All of these efforts are components of the broader homosexual agenda to redefine the family, and weaken the institution of marriage by chipping away at the state laws that protect it.³⁶ In particular, laws that include “sexual orientation” and/or “gender identity” as specially protected classes have been cited by the courts in other states—including California, Connecticut and Iowa—to justify the redefinition of marriage on the grounds that denying same-sex couples the ability to legally marry is a form of discrimination.³⁷

Time For the People to Decide
For six years, homosexual activists and their allies in the General Assembly have successfully managed to prevent debate on the issue of protecting marriage, and to keep the MPA legislation from reaching lawmakers and the people for a vote. They are desperate to keep the question of marriage preservation away from the people because they know that if North Carolinians are allowed to vote on the MPA, it will pass overwhelmingly. In every state where it has been on the ballot, the MPA has been approved by a majority of citizens, and recent polls in North Carolina have found overwhelming support for the amendment among voters. According to two independent polls by the North Carolina Family Policy Council and the John W. Pope Civitas Institute in February and March 2009, nearly three-fourths of voters support amending the state constitution to preserve the definition of marriage as only the union of a man and a woman.³⁸

The old argument that North Carolina is not vulnerable to the threat of marriage redefinition is simply not valid. With an increasing number of states plus D.C. redefining marriage, and every state in the South—except North Carolina—preserving marriage through constitutional amendments, the Tar Heel state is ripe for an attack on our marriage laws. It is no longer a matter of if our marriage laws are challenged, but when.

“After Massachusetts, Connecticut, Iowa, and California, it is literally absurd to pretend a threat from the courts does not exist to North Carolina’s marriage laws,” says Maggie Gallagher. “These politicians have to start leveling with the voters. What matters in this battle is what the people of North Carolina say to their elected officials. The voters need to flood their offices with calls, and follow it up with their votes.”³⁹

Endnotes

1. NCFPC, “Greensboro Billboard Promotes Homosexual Marriage,” 10/8/2009, http://www.ncfamily.org/stories/091008s1.html. Also view billboard at: http://www.triadequality.org/waited.htm
2. Ibid.
3. Gresko, Jessica, “More than 100 Same-Sex Couples Seek DC Marriage Licenses,” Associated Press, 3/3/2010. See also: DC Superior Court Marriage Bureau: http://www.dccourts.gov/dccourts/superior/family/marriage.jsp
4. National Conference of State Legislatures, “Same Sex Marriage, Civil Unions and Domestic Partnerships,” Updated Feb 2010, accessed at: http://www.ncsl.org/IssuesResearch/HumanServices/SameSexMarriage/tabid/16430/Default.aspx
5. Ibid.
6. NCFPC, “2009 General Assembly Session Wrap-up,” Fall 2009, available at: http://www.ncfamily.org/FNC/0910S4.html.
7. NCFPC, “2009 General Assembly Session Wrap-up,” Fall 2009, available at: http://www.ncfamily.org/FNC/0910S4.html
8. NC G.S.§51-1.2
9. Op. Cit., National Conference of State Legislatures.
10. Gresko, Jessica, “More than 100 Same-Sex Couples Seek DC Marriage Licenses,” Associated Press, 3/3/2010.
11. Alliance Defense Fund, “Challenge to DC Marriage Redefinition Law Intensifies With New Appeal,” 2/24/10, http://www.adfmedia.org/News/PRDetail/3802
    
12. Alliance Defense Fund, http://www.domawatch.org/stateissues/dc/index.html
13. Ibid. See also: U.S. Congress, S.2980-“District of Columbia Referendum on Marriage Act 2010,” and also HR 4430.
14. NCFPC, “New Hampshire Legalizes Same-Sex ‘Marriage’” 6/4/09, as found at: http://www.ncfamily.org/stories/090604s1.html
15. See http://letnhvote.com/learn_more.htm
16. NCLS, “Timeline: Same-Sex Marriage,” as found at: http://www.ncsl.org/Default.aspx?TabId=4243
17. Op. Cit., NCLS, see also: The Wall Street Journal, “Same-Sex Marriage Laws: A State By State Rundown,” as found at: http://online.wsj.com/public/resources/documents/info-SAME_SEX_MAP_0905.html
18. NCFPC, “Same-Sex ‘Marriage’ Legalized in Iowa,” 4/3/09, as found at: http://www.ncfamily.org/stories/090403s1.html
19. Varnum v. Brian as found at: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20090403/07-1499.pdf
20. Ibid.
21. National Organization for Marriage, “Victory in Maine,” http://nomblog.com/554/. See also: http://www.time.com/time/nation/article/0,8599,1934432,00.html.
22. NOM, PR, “Big Win for Marriage: Thank You New York,” 12/2/09, as found at: http://www.nationformarriage.org/site/apps/nlnet/content2.aspx?c=omL2KeN0LzH&b=5075187&content_id={C501DB28-DC47-468D-8A50-9B93ECEAAD9A}&notoc=1
23. National Conference of State Legislatures, “Same Sex Marriage, Civil Unions and Domestic Partnerships,” Updated Feb 2010.
24. NCFPC. “New Jersey Rejects Same-Sex Marriage,” 1/8/10, http://www.ncfamily.org/stories/100108s1.html
25. NCFPC, “New Jersey Passed Civil Unions Bill,” 12/20/26, http://www.ncfamily.org/stories/061220s1.html
26. Garden State Equality, PR, “Back to Court to Win Marriage Equality,” 1/7/10, http://www.gardenstateequality.org/court.html
27. Maggie Gallagher, Email Interview by Author, Dated February 22, 2010.
28. ProtectMarriage.com/California Voices for Prop. 8, Perry v. Schwarzenegger information, as found at: http://www.protectmarriage.com/trial
29. Alliance Defense Fund (ADF), “Perry v. Schwarzenegger: What’s at Stake,” as found at: http://www.adfmedia.org/News/PRDetail/12012?search=1.
30. Ibid.
31. Case is Mullinax v. Covington. For other examples of non-legal challenges to NC’s marriage laws see: ElHage, Alysse, “Saying ‘I Don’t’ to Marriage: Is NC Turning Its Back on Marriage?” Family North Carolina, Sept/Oct 2006.
32. NCFPC, “Court Indirectly Affirms Homosexual Adoption (Boseman v. Jarrell),” 8/21/200, as found at: http://www.ncfamily.org/stories/090821s1.html. See also: Fitzgerald, Tami, “Joint Custody to Lesbian Couple,” Courts, Family North Carolina, July/August 2008.
33. ElHage, Alysse, “The School Violence Prevention Act: How to Implement the New Law Without Promoting Homosexuality,” Family North Carolina, Winter 2010.
34. NCFPC, “Mecklenburg Co. Approves Domestic Partner Benefits,” 12/18/09, as found at: http://www.ncfamily.org/stories/091218s1.html.
35. Ribeiro, Paul, “Marriage Laws in North Carolina: Why North Carolina is Not Protected Under Current Marriage Laws,” Family North Carolina, May/June 2009. See also, Equality NC, “Plan Today, Then Act in May,” 2/4/10, as found at: http://equalitync.org/news1/plan-today-then-act-in-may.
36. For more on this, see ElHage, Alysse, “Connecting the Dots of the Homosexual Agenda,” Family North Carolina, May/June 2009.
37. Op. Cit., Paul Ribeiro. See also, Messner, Thomas, “ENDA and the Path to Same-Sex Marriage,” Backgrounder, The Heritage Foundation, 9/18/2009.
38. NCFPC, “New Marriage Amendment Poll Released,” 3/31/2009, see http://www.ncfamily.org/stories/090331s2.html
39. Maggie Gallagher, Email Interview by Author, February 9, 2010.