By: Sarah Bowman
There are words that hold special levels of meaning and importance.? You cannot use ?stuff? the same way you use ?rights;? you cannot use ?good? to properly convey ?honorable?.
Unfortunately in our society of social and mass media, we are bombarded with the misuse of words every day.? It is essential words not be misused or misinterpreted in the context of the laws that govern our society.? Peter McClelland?s January 25th article exemplifies the necessity for proper understanding of words in a legal context regarding the NC Marriage Amendment, and how the Marriage Amendment itself provides an opportunity to reveal and correct misperceptions and lack of understanding regarding the law and our rights as citizens who have agreed to live under the law. ?The Equal Protection and the Full Faith and Credit Clauses of the United States Constitution are relevant to the question of marriage laws, however, they do not deny North Carolina the right to propose and pass the Marriage Protection Amendment.
As Mr. McClelland stated, on May 8th, there will be a referendum on the ballot for all North Carolina voters to decide whether or not the definition of marriage for our state will
remain one man and one woman only.? If the referendum passes, the current statutory definition of marriage will become an Amendment to the Constitution of North Carolina protecting it from reinterpretation by a judge or redefinition by the Legislature.? The referendum places the power in the hands of the people of North Carolina to exercise our most fundamental democratic right regarding the most fundamental building block of our society. Mr. McClelland?s article, ?Conservatives, Vote Against the NC Marriage Amendment,? uses the word conservative in an attempt to appeal to all Conservatives, but he mixes his message.? He attempts to use his misguided interpretation of the conservative perspective regarding the size and reach of government, to claim a ?true conservative? would ?vote no,? while totally disregarding the conservative stance on moral issues.? Individuals who hold themselves out as conservative or who are often labeled conservative wear the badge of conservatism not only as an indication of their stance on the size of the government, but also their moral perspective usually tied to religious beliefs.? Many, if not most, moral conservatives believe marriage is a unique relationship that should remain religiously and legally identified as between one man and one woman. ?Therefore, the Marriage Amendment is not only morally conservative, but also universally traditional and in keeping with traditional legal perspectives on marriage.
In regards to personal relationships, the Equal Protection Clause of the 14th Amendment to the US Constitution, ?no state shall?deny to any person within its jurisdiction the equal protection of the laws,? has been interpreted by the US Supreme Court to allow for consenting adults to choose the nature of their relationships.? However, the right to those relationships has not been held to entitle us to a status such as marriage recognized by the state. In other words, we as citizens do not have the right for the state to recognize or give status to every kind of relationship we choose to engage in.? In keeping with the law, the Marriage Amendment does not address individual relationships; it merely promotes the current statutorily recognized relationship of marriage to an Amendment to protect the legal definition from being arbitrarily changed by a court or politically fluid legislature.?Furthermore, the Amendment, and all 30 in other states, follows the legal precedent of individual states addressing marriage legally as they see fit for their community.
Mr. McClelland proposes the Amendment violates the Equal Protection Clause by utilizing common rhetoric regarding our rights; he states: ?it is not the role of the state to decide
who?s rights to pursue happiness it will assist and who?s it will impede?[sic]. Actually, that is exactly what the government?s role is in all areas of law.?At its most basic function, government exists to promote the health, safety, and welfare of its citizens which often is at odds with some of its citizens? happiness, and this is true with marriage.?All laws regarding marriage vary from state to state and dictate when, how, and to whom (or to what) people may marry.?While it is comfortable to think our personal relationships do not impact others, the reality is they do and this is why the state is involved.? Furthermore, the state has never set laws on marriage due to an interest in our happiness.? Rather, government is only involved in marriage as a result of interests in the stability of society, including economic stability, and the welfare of children.? Frankly, the government could care less whether we are in love or happy; the government is interested in our health, safety, and welfare.? For example, some Mormons have a personal religious interest in polygamy, yet polygamy is illegal due to the health, safety, and welfare interests involved. I am not implying homosexual relationships and polygamy are the same; the comparison illustrates how the question of marriage in regards to our law involves more than a subjective question of happiness.
Mr. McClelland also brings the important issue of Full Faith and Credit into question and interprets the Constitution to mean ?marriage licenses or civil unions granted by the judiciary in one state ought to be recognized by North Carolina and all other states.?? He goes on to admit ?there have been exceptions carved out,? but dismisses those states? rights as being due to the nature of the ?activity?[being] drastically different from one state to another?.?Being a doctor, lawyer, pharmacist, vehicle operator, and so on are generally the same no matter what state you live in, but the states have the right to establish different licensing requirements and rules regarding license reciprocity.? The laws reflect the individual states? citizens? concerns for their community as well as each states? unique health, safety, and welfare needs.? Some states grant full immediate licensure, some require different numbers of years of
practice in good standing, some require you take an exam, and others do not grant recognition at all.? For example, in the specific context of marriage, some states acknowledge Common Law Marriage based on a number of years a couple acts like they are married, but others do not.
In yielding to the states? rights regarding marriage, the Federal government enacted the Defense of Marriage Act (DOMA) in 1996, and Section 2 of the Act provides: No State,
territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. Therefore, while Full Faith and Credit is obviously a relevant issue to be analyzed in regards to any licensing practice amongst the states, the manner in which the reciprocity for each type of license is regarded under the law is unique and does not operate under a blanket theory of universal reciprocity among the states.
In closing, society, especially democratic society, is ruled by the majority.?We agree to live together under rules decided by this majority.? The majority decides what rights we have by
selecting government and judicial representatives as well as by popular vote of the people.? The North Carolina Marriage Protection Amendment in no way strips away existing rights or violates existing rights.? We sometimes wish we had right that do not exist or misunderstand our freedoms under the law especially when a complex legal issue is at question.? All
registered voters in North Carolina do have the right to vote on May 8th regarding whether the definition of marriage in our state will be promoted to a state constitutional amendment or remain a statutory definition.? Please, vote, and I hope you vote ?Yes? whether you are morally conservative, legally traditional, or simply uniquely persuaded.
Legal Research for the article was done by: Whitney Pennington, Legal Extern from Campbell University School of Law, Raleigh NC
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