Last week I had the pleasure of being interviewed by Kelley Sousa from Reese News, a project of the University of North Carolina at Chapel Hill’s School of Journalism and Mass Communication. Ms. Sousa wanted to ask me some questions about the effects of Amendment One, as well as for some legal analysis and a bit of forecasting the future. While I’m not possessed of the gift of prescience, I did my best to apply my knowledge and expertise to address Ms. Sousa’s questions. The resulting article is linked from our previous blog post, and I highly recommend it to our readers. What follows here is the unabridged (although slightly edited for readability) interview between Ms. Sousa and myself.

As always, we welcome questions and comments. And if you are in need of a cohabitation agreement, power of attorney, health care power of attorney, or any other legal services, please don’t hesitate to contact us for a conversation.

1) Legally, what do “domestic partnership” and “civil union” mean in North Carolina?

Typically, a civil union has most or all of the same legal effects as marriage. However, because North Carolina does not recognize civil unions, there is no North Carolina definition of a civil union. It is not that North Carolina outlaws civil unions. They are simply absent from NC law and therefore not authorized.

Domestic partnerships are a little bit different because, over the past few years, some municipalities in the state have decided to extend certain employment-related benefits to registered domestic partners. Each municipality has defined a domestic partnership in slightly different ways, but it is generally defined as two people living together in a long term, committed relationship without the benefits of marriage. While some municipalities recognize domestic partnerships, the state refused to recognize these relationships even before Amendment One.

2) How could private businesses and municipalities in NC give out domestic partnership benefits prior to Amendment One?

The North Carolina Constitution gives the North Carolina General Assembly authority to create local governments and grant them powers and duties as the assembly sees fit. The General Assembly has granted all local government entities authority to hire and fire employees. Cities, counties, and other local management entities have express authority from the General Assembly to determine employee benefits. The General Statutes do not specifically mention domestic partner benefits, but the grant of authority of local governments to design benefit packages is broad.

NCGS section 160A-162(b) gives cities authority to “purchase life, health, and any other forms of insurance for the benefit of all or any class of city employees and their dependents . . .” NCGS section 160A-4 sets the standard for statutory interpretation of that chapter. It says that the provisions of chapter 160A shall be “broadly construed and grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect: Provided, that the exercise of such additional or supplementary powers shall not be contrary to State or federal law or to the public policy of this State.” Similar provisions exist with respect to county authority.

Before Amendment One, these sections worked together to allow municipalities to offer benefits to domestic partners. However, now that it is state law and policy that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State,” section 160A-4, which previously helped municipalities find legal footing to offer these benefits, may now argue against their legality. This is because the amendment has, arguably, made the recognition of non-marriage unions both illegal and contrary to public policy. However, it is still possible that domestic partners might qualify as “dependents” under the statute and thereby be able to qualify for benefits. This is definitely an argument I would expect to see these municipalities make when and if their programs are challenged.

3) What repercussions may occur if businesses and municipalities continue to give out such benefits?

Businesses should be protected by the private-party to private-party contract exception in the amendment itself. They should see no legal repercussions from continuing their benefits programs.

It is a different matter for municipalities. First, they will likely continue their programs until someone tells them they have to stop. This will most likely come in the form of a lawsuit. The problem there is a problem of legal standing to sue. To bring a suit to challenge the constitutionality of a law or government policy, the plaintiff must actually have been harmed by the law or policy. As in many cases, it is hard to see who is specifically harmed by these benefits policies other than the financial harm as a taxpayer. Taxpayer standing to challenge a law is very limited and would not likely work in this case. The Attorney General of North Carolina may be the only person who could bring the suit, which makes it into a political issue all over again.

Assuming a suit was brought and the programs were found unconstitutional or otherwise illegal, the remedy would be a court order enjoining the municipality from continuing the program.

4) Are heterosexual and homosexual couples in domestic partnerships or civil unions affected equally by the amendment.

Legally speaking, the Amendment affects homosexual and heterosexual domestic partners equally. It makes it so that, whatever “domestic partnership” means, it can not mean a “domestic legal union”. That applies to same and opposite-sex couples equally. Practically speaking, I have seen statistics that show that domestic partnerships in NC are overwhelmingly same-sex, as one would expect, so vastly more same-sex couples will be affected by the Amendment tan opposite-sex couples.

Again, because civil unions have never been recognized in NC, the Amendment doesn’t actually affect people in NC who are in civil unions from other states.

5) What will be the major effects of Amendment One? Hospital Visits? Child custody lawsuits? Health benefits? Domestic violence cases?

I think the biggest change from Amendment One is the possibility that it could outlaw municipal domestic partner benefits as discussed above. In most other ways it simply maintains the status quo and makes it harder to change the law later.

Hospital Visits: It was already the case in North Carolina that domestic partners were not recognized by the state as being in a legal relationship or having any special legal status. Amendment One does not change anything there. However, under the NC Patient’s Bill of Rights, patients may not be denied the “right of access to an individual or agency who is authorized to act on his behalf to assert or protect the rights set out in this section.” This means that if domestic partners name each other as Healthcare Power of Attorney, each will be assured access should the other be hospitalized. This would be highly recommended for anyone living in this kind of arrangement.

The Patient’s Bill of Rights also says, “A patient has the right to designate visitors who shall receive the same visitation privileges as the patient’s immediate family members, regardless of whether the visitors are legally related to the patient.” This means that any patient can authorize any visitor he chooses. However, such an authorization can not be made in some circumstances, such as if the patient is unconscious or incoherent. For individuals in committed relationships, a healthcare power of attorney may be a better option.

Child Custody Lawsuits: There are a couple of points to understand here.

1) Biological parents have a constitutional right to have an opportunity to parent their children (unless their rights have been legally revoked, such as by a finding of unfitness or by adoption.)

2) Custody between parents with equal constitutional claims to parenting, such as two adoptive parents or two natural parents, is based on a court’s finding of what is in the child’s best interest. In the case of a same-sex relationship where the child is the natural or adopted child of only one parent, there will be a strong presumption in favor of that parent getting sole custody of the child. This legal paradigm is probably unchanged by Amendment One.

Domestic Violence: Domestic Violence under NCGS chapter 50B was already very limited in its application to same-sex couples before Amendment One. The law in this area is also likely unchanged by Amendment One. The main effect of Amendment One in these areas is that the Amendment could make it harder to change the law on child custody and domestic violence to be more flexible or protective in the context of same-sex couples. Please see my original poll-day blog post about Amendment One for further detail about the application of chapter 50B to same-sex couples in North Carolina.

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WhichWayNC.com has published a story today on the question of whether the newest amendment to the North Carolina state constitution makes domestic partner benefit plans offered by varioius municipalities throughout the state illegal.

I was happy to have a chance to contribute some legal analysis to the article, which is titled “Awaiting An Answer: What Will Amendment One Change?”.

The whole state is awaiting a legal opinion from the North Carolina Attorney General. In the meantime, local policymakers debate whether and how the amendment affects their domestic partner benefit plans. Plan opponents see the adoption of Amendment One as an invitation to cancel these benefit plan policies. But supporters have no intention of voluntarily giving up the benefit plans. As the article points out, the Attorney General’s opinion will far from settle the issue. However, the question is this: If the AG doesn’t sue these municipalities for violating the state constitution, who else could have standing to do so?

Be sure to look for the full interview on our blog next week!

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