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North Carolina’s “Marriage Amendment” May Have Broad Implications
The proposed constitutional "Marriage Amendment" in NC could have implications beyond same-sex couples seeking legal rights.

In the fall of 2011, the North Carolina General Assembly passed a measure that will send the state’s “Marriage Amendment” to voters on May 2012’s primary election ballot. If approved, the modification of North Carolina’s Constitution will cement a statewide ban on same-sex marriage that is already in place by statute.

Of course, a constitutional ban on same-sex marriage sends a strong message, and would be far more difficult to overturn than a statutory counterpart. While the gist of the Marriage Amendment is aimed at same-sex couples, scholars, North Carolina family law attorneys and other experts caution that the measure could take a broader toll than many expect — and might also apply to unmarried heterosexual couples.

Same-Sex and Unmarried Heterosexual Couples Equally — and Deeply — Affected by Marriage Amendment Language

The wording that will appear on the ballot for North Carolina’s Marriage Amendment reads as follows: “Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in the state.” North Carolinians will be asked to vote “yes” or “no” on the measure, and the referendum will be approved if it receives a simple majority.

Supporters of the Marriage Amendment claim that its clear, common language only has one purpose: bolster the state’s current prohibition on same-sex marriage. There is little doubt that the amendment would do just that; however, it would also have a potential legal impact on all unmarried couples, regardless of sexual orientation.

According to the 2010 Census, almost nine out of ten unmarried cohabitant households in North Carolina are comprised of three types of heterosexual couples: young couples who are putting off marriage, middle-aged couples who have decided against marriage and older couples who have been married previously and do not wish to remarry later in life. Gay or straight, all unmarried couples would be affected by the Marriage Amendment: it would preclude the state from offering any type of civil union or domestic partnership status that would afford some lesser array of protections compared to marriage; and, the amendment would also eliminate the domestic partner insurance benefits currently offered by many North Carolina municipal governments.

The aforementioned impacts on all unmarried couples are just the tip of the iceberg; legal experts take them as a given should the amendment pass. However, the Marriage Amendment’s ultimate, and most far-reaching effects, could be felt through subsequent interpretations by courts.

Problematically, no one can say for sure just how deep the amendment will cut for unmarried couples after it is filtered through the courts. Among other things, the Marriage Amendment could:


  • Undermine current standards for child custody and child visitation rights
  • Preclude unmarried partners from taking advantage of certain domestic violence protective measures
  • Prevent the state from affording unmarried partners any protections in terms of visiting each other in the hospital, making emergency or financial decisions on each other’s behalf in the event of incapacitation, or arranging for the disposition of a deceased partner’s remains
  • Invalidate trusts, wills and end-of-life directives by one unmarried partner in favor of the other

These issues are admittedly worst-case scenario fears, but they are a real and pressing concern given the open-endedness of the Marriage Amendment’s language.

Panel’s Simplified Explanation of Marriage Amendment Could Leave Some Voters Uninformed

Many voters, unfortunately, are not likely to be fully aware of the Marriage Amendment’s penumbra beyond the gay marriage context. The Constitutional Amendments Publication Commission is a state panel that is responsible for preparing a short explanation of any proposed amendments to the North Carolina Constitution and giving that summary language to the media and to the election boards in all of the state’s 100 counties. After receiving an amendment explanation, some counties choose to disperse it to the general public.

On March 1, the Constitutional Amendments Publication Commission voted in favor of a one-page explanation of North Carolina’s Marriage Amendment. Although members of the Commission were quick to point out that it is not a political body, debate on the language of the explanation was primarily left to partisan groups lobbying for and against the Marriage Amendment. Ultimately, after about ten sample drafts, the Commission voted in an explanation that did not seem to fully satisfy either side.

The explanation pointed out a 1996 state law that already makes same-sex marriage invalid in North Carolina — but supporters of the Marriage Amendment say the explanation should have made it more explicit that the measure’s main purpose is to preserve the definition of marriage as a legal union between one man and one woman. Critics of the Marriage Amendment, on the other hand, were troubled that the explanation failed to clearly address the potential negative implications for domestic violence laws, child custody agreements and end-of-life arrangements, saying only that the courts would ultimately decide the extent of the amendment into such areas — and the Commission’s explanation fails to address the fact that local governments would no longer be able to offer benefits to domestic partners of their employees if the amendment passes.

What Will the Marriage Amendment Mean For You? Get Help From a North Carolina Family Law Attorney

North Carolina’s Marriage Amendment will come before voters on May 8, 2012. For unmarried couples, both same-sex and heterosexual, it is likely to have a huge, albeit uncertain, impact.

If you are concerned about what the Marriage Amendment could mean for your intimate legal affairs, you may wish to consider speaking to a family law attorney. Your attorney can help explain the proposed constitutional change and what it is likely to mean given your individual circumstances. In addition, your attorney may be able to help you hedge against certain risks posed by the Marriage Amendment by executing strong legal documents.

It is true that no one knows exactly what the full extent of the Marriage Amendment will be if it is approved by North Carolina voters. But, by speaking to an attorney, you can prepare yourself as best you can, obtaining at least some peace of mind in the face of uncertainty.

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