As Bob Geary noted in his piece for the Independent Weekly, there are myriad matters related to the rights of lesbian and gay couples that will end up in court as the result of the passage of Amendment One here in North Carolina.  In the wake of this ban on same-sex marriage (as well as the prospect of state civil unions and domestic partnerships), a new paper by Diane M. Juffras of the UNC School of Government, “Amendment One, North Carolina Public Employers, and Domestic Partner Benefits,” suggests that municipal and county bodies that have domestic partnership benefits in place aren’t running afoul of the amendment.

First, this is the amendment language:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. 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.

The second sentence (which did not appear on the ballot), is where there is squishiness. Juffras makes the case for the legality DP benefits by saying they don’t challenge the legal definition of marriage; that the benefits technically do not “recognize” the couple legally, it’s simply a policy.

In my opinion, Amendment One does not take away the authority of North Carolina local government employers to offer domestic partner benefits.

First, Amendment One has plain meaning on its face: (1) the state can allow only a man and a woman to enter into a marriage, (2) marriage is the only legal status that the state can grant an opposite-sex couple, and (3) the state cannot grant any legal status whatsoever to relationships between same-sex couples.

With this plain meaning, Amendment One merely puts into the constitution the North Carolina statuory law on marriage and civil unions between same-sex couples as it existed on May 8, 2012, and therefore effects no change on the ability of North Carolina local governments to offer their employees domestic partner benefits.

Second, there is no legal precedent in North Carolina or elsewhere for the proposition that a government employer’s coverage of its employees’ domestic partners under benefits plans makes valid or constitutes legal recognition of any union or confers rights and responsibilities to any union under the law. To extend benefits is not to “recognize” any kind of union.

Third, there appears to be a good chance that a court would find the denial of domestic partner benefits a violation of either the federal or the North Carolina equal protection clauses.

The major problem here is that the term “domestic legal union” does not exist in any NC statute. Cities like Durham and Chapel Hill have DP benefits in place (and haven’t retracted them after the vote), and Charlotte recently voted to add the benefits, also directly challenging A1, so the gauntlet has been thrown down.

It remains to be seen whether the pro-amendment forces will offer a legal counter-argument to Juffras’ position paper and challenge the existing  municipal and county DP benefits citing A1, but the bottom line is that this wrangling over A1′s scope and constitutionality is just beginning.