Same Sex Marriage in North Carolina

On May 8, North Carolina voters decisively approved an amendment to the state constitution recognizing “marriage between one man and one woman” as the “only domestic legal union that shall be valid or recognized in this state.” While the vote garnered national press attention and condemnation from supporters of same-sex marriages, the actual legal impact of the amendment remains unclear.

The amendment did not ban same-sex marriage, as it was never legal in North Carolina to begin with. In 1996, the General Assembly adopted legislation declaring same-sex marriages, even those created or performed in other states, “not valid in North Carolina.” The constitutional amendment simply reaffirmed this and made it impossible for the legislature to change its position unless the voters approve another constitutional amendment.

The amendment’s statement that opposite-sex marriages are the only “legal union” recognized in the state is a source of confusion, as that phrase is never defined in North Carolina law. The Constitutional Amendments Publication Commission, a group of three state officials that oversaw the same-sex marriage amendment vote, noted in an official release, “There is debate among legal experts about how the proposed constitutional amendment may impact North Carolina law as it relates to unmarried couples of the same or opposite sex” with regard to issues like child custody, employment benefits and domestic violence laws. The Commission said “the courts will ultimately make those decisions.”

The constitutional amendment, however, expressly states that it does not prohibit anyone, including unmarried partners, from “entering into private contracts” that are legally enforceable in North Carolina courts. Still, there is concern that the amendment may be used to overturn benefits granted by some North Carolina localities to unmarried domestic partners, including straight couples. Opponents also claimed the amendment would undermine the state’s domestic violence protections for people in non-marital relationships.

North Carolina became the 31st state to adopt a constitutional amendment restricting marriage to opposite-sex couples. Eight other states have adopted laws to recognize same-sex marriages. Four states recognize same-sex marriages performed legally in other states. A handful of foreign nations, including Canada, also recognize same-sex marriages. Minnesota and Maine have scheduled referenda for later this year to prohibit and legalize same-sex marriages, respectively.

This was not the first time voters directly amended the North Carolina constitution with respect to marriage. In 1875, voters approved an amendment prohibiting interracial marriages. The U.S. Supreme Court declared such policies a violation of the federal Constitution in 1967, and the provision was omitted from the new North Carolina constitution adopted in 1971.