In 2012, North Carolina became the thirtieth state to adopt a constitutional amendment refusing to recognize any marriages or civil unions other than those between one man and one woman.[1] Article 14, Section 6 of the North Carolina Constitution, popularly referred to as “Amendment One,” states that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized by this state.”[2] Only eight years ago, Amendment One passed with 61% of voters in favor of enshrining this restrictive definition of marriage in our state constitution.[3] When the passage of Amendment One was announced, proponents “celebrated the win with a tiered wedding cake at a party in the North Raleigh Hilton Hotel.”[4] Tami Fitzgerald, then the chairwoman of Vote for Marriage NC, the group behind Amendment One, attempted to convince the press that “we are not anti-gay, we are pro marriage.”[5] She elaborated that “the whole point is simply that you don’t rewrite the nature of God’s design for marriage based on the demands of a group of adults.”[6] However, LGBTQ+ advocates and opponents of Amendment One recognized that “this is just a skirmish, in a battle in the war that we will win.”[7]
Thankfully, Amendment One was rendered moot three years after its passage by the Supreme Court’s landmark ruling in Obergefell v. Hodges.[8] In Obergefell, the Supreme Court held that same-sex couples have the constitutional right to “have their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”[9] This ruling marked the federal legalization of same-sex marriages and overruled all state laws and constitutional provisions outlawing such marriages.
Unsurprisingly, not everyone agreed with the holding and impact of Obergefell. Some felt it “fundamentally misunder[stood] the reality of what marriage is,” and that same-sex marriages would degrade the “sanctity of marriage.”[10] Others felt that the decision was made on fabricated constitutional grounds, and that it deprived states of the ability to define marriage as between one man and one woman, as many had already chosen to do.[11]
After Obergefell, it seemed as if the same-sex marriage debate had finally ended. However, some North Carolinians were not ready to give up the fight. On Valentine’s Day 2019, five Republican state legislators introduced House Bill 65, the short title of which was the Marriage Amendment Reaffirmation Act.[12] The long title of House Bill 65 was “An Act to Reaffirm the Vote of the People of North Carolina to Adopt Article XIV, Section 6 of the Constitution of the State of North Carolina, Known as the Marriage Amendment, to State Why the Amendment Should be Upheld, to Declare Null and Void for the State of North Carolina the Obergefell v. Hodges Decision of the United States Supreme Court, and to Call on the United States Supreme Court to Overturn the Obergefell v. Hodges Decision.”[13]
Despite its comedically long title, House Bill 65 contains some divisive and scary rhetoric. The Representatives who drafted the bill assert that Obergefell must be overturned because it violated the Establishment Clause of the First Amendment by imposing upon the American people “Secular Humanism” and its beliefs.[14] It defines all marriages other than those between a man and a woman as “parody marriages” that “do not follow the scientifically obvious biology of the human species.”[15] It continues by iterating that “there are thousands of taxpayers living in the State of North Carolina who sincerely believe that all forms of marriages that do not involve one man and one woman are immoral. . . [and] enable immorality and the erosion of community standards of decency.”[16] House Bill 65 concludes that North Carolina must consider “null and void and unenforceable” the holding in Obergefell as violative of the First Amendment of the US Constitution.[17]
The impact of such a bill, should it be passed, would be the attempted nullification of all same-sex marriages performed since 2015. Fortunately, despite the fact that the bill was referred to the Committee on Rules, jokingly referred to by some as where “bills go to die,”[18] House Bill 65 is not dead enough. Two years before House Bill 65 was proposed, the state legislature was presented with House Bill 780, which also attempted to reinstate Amendment One on the grounds that Obergefell incorrectly interpreted “the decree of God.”[19] Like House Bill 65, House Bill 780 was sent to the Committee on Rules.[20] However, of House Bill 780, House Speaker Tim Moore released a public statement that the bill “will not be heard.”[21] No such assurance has been made about House Bill 65.
Nearly five years ago, the Supreme Court recognized the right of same-sex couples to marry. This decision should have finally allowed same-sex couples to rest assured in the security of their unions and the protections of their families against government interference. Unfortunately for same-sex married couples in North Carolina, this has not been the case. On a biannual basis, legislation has been proposed attempting to undermine the constitutional right to marriage. Both pieces of legislation relied upon reinstating Amendment One, which would set North Carolina back nearly ten years in the LGBTQ+ rights movement and upend and unknown number of marriages and families. The North Carolina legislature must act to formally remove Amendment One from the state constitution and finally give same-sex married couples the stability and privacy to which they are constitutionally entitled.
[2] N.C. Const. art. XIV, § 6.
[5] Robertson, supra note 1.
[8] 135 S.Ct. 2584 (2015).
