Effects of North Carolina Amendment One on Cohabitation Agreements, Domestic Partnership Agreements, Civil Unions, and Domestic Violence

What Is North Carolina Amendment One?

Today is poll day, and North Carolina’s proposed constitutional amendment defining marriage as between one man and one woman, the so-called Amendment One, is getting news coverage nation-wide. The actual text of the amendment is as follows: “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.”

What Does It Mean? The Effects of Amendment One on Gay Marriage, Civil Unions, Domestic Partnerships, and Domestic Violence

The amendment has drawn substantial attention from supporters and opponents alike, but polls have shown that most voters don’t really know or understand the amendment. Indeed, even expert commentators disagree about the practical and legal consequences that will follow if the amendment passes, as it is expected to do.

It is clear from the text of the amendment that it makes gay marriage illegal in North Carolina. Furthermore, the amendment’s “only domestic legal union” language would also ban civil unions and state-backed domestic partnerships.

Many of the amendment’s detractors, pointing out that same-sex marriage and civil unions are already invalid in North Carolina, point out that the amendment doesn’t change the law on that front, but that it may have some negative side-effects. Two of the primary arguments against the amendment have been 1) that it will have a negative effect on North Carolinians currently living under voluntary, contract-based domestic partnerships, to whom some companies and municipalities, like Chapel Hill, grant benefits; and 2) that it will make it more difficult for individuals in same-sex relationships to seek court help for domestic violence issues.

Amendment One and Contractual Domestic Partnerships and Same-Sex Cohabitation Agreements

Although the state of North Carolina does not recognize domestic partnerships as a legal status, the state’s courts do enforce contract-based domestic partnerships and same-sex cohabitation agreements. These kinds of agreements, whose enforceability is derived from contract law, are similar to prenuptial agreements for marrying couples. They allow the parties to the agreement to make rules about how they will contribute to the relationship and the household, how they will own and manage property during the relationship, how they will divide property if the relationship ends, and can create obligations for support. While such agreements do not confer a special status upon the parties like marriage does, they can at least set a legal framework to govern most of the same aspects of the marriage that are governed by marriage and divorce law.

Amendment One, by its text, does not affect these agreements, does not make them unenforceable, and does not prevent a judge from upholding them in court. For individuals who are already living under a contractual domestic partnership or same-sex cohabitation agreement, they should see no change with respect to the rules they have created for their relationship. For individuals who are considering entering a domestic partnership or same-sex cohabitation agreement, the amendment does not hinder them from doing so.

Amendment One and Municipal Domestic Partnership Benefits

As mentioned above, many private businesses as well as municipalities in North Carolina offer domestic partner benefits despite the fact that the state of North Carolina does not recognize domestic partnership as a legal status. There has been much concern that Amendment One’s “only domestic legal union that shall be valid or recognized in this State” language could put an end to municipal domestic partnership benefits. It is hard to say at this time which way this issue will go.
On the one hand, one could argue that if the state constitution says that domestic partnerships can’t be recognized in North Carolina, then government institutions like municipalities would be forbidden from offering benefits on the basis of a domestic partnership. After all, municipalities use taxpayer dollars to fund these benefits, and paying these benefits with taxpayer dollars implies recognition by the state.
On the other hand, that is not a necessary interpretation of the text of the amendment. An alternative interpretation of the amendment would say that it merely maintains the status quo. Pre-Amendment One state law in North Carolina does not recognize any legal union other than heterosexual marriage. Despite the state’s refusal to recognize civil unions or domestic partnerships as legal unions akin to marriage, municipalities are permitted to offer domestic partnership benefits to employees. In this interpretation, the benefits would be unaffected by the amendment because the benefits do not depend on state recognition of a legal status.

It is certainly the case that this issue could go either way when decided by the courts, as it certainly will be if Amendment One passes. This commentator leans toward the latter interpretation. It would be wise for proponents of these benefits not to argue too vehemently against this latter interpretation, as they have done in the weeks leading up to the vote in order to increase opposition to Amendment One, because they will surely be the ones proffering it as the correct interpretation should the amendment pass.

Amendment One and Domestic Violence

In addition to concerns about domestic partnership benefits, opponents of Amendment One have raised questions about its possible effect on the ability of people in same-sex relationships to get help if they become victims of domestic violence. Domestic violence is the subject of North Carolina General Statute Section 50B.

Section 50B-1 defines domestic violence. They key phrase that takes an act out of the realm of ordinary assault and battery and into the realm of domestic violence is “personal relationship,” which is further defined in the statute. The term applies to 1) current or former spouses, 2) persons of opposite sex who live together or have lived together, 3) children and their parents or guardians, 4) persons who have a child in common, 5) current or former household members, or 6) persons of opposite sex who are in a dating relationship or have been in a dating relationship.

As you can see, the statute is not exactly same-sex-couple-friendly, Amendment One or no. Members of a same-sex couple can not qualify under #1, #2, or #6 and will rarely qualify under #4 in cases of adoption. Furthermore, #3 does not address domestic violence between the parties in the relationship but between a parent or guardian and a child. That leaves #5, current or former household members. This means that same-sex couples do not have access to domestic violence remedies unless they are physically living together, a requirement that does not apply to heterosexual couples.

Amendment One seems very unlikely to have any effect on domestic violence laws or enforcement in North Carolina. Whether the statutory law on domestic violence itself needs reform is a matter in itself, regardless of Amendment One.

Hopefully this information in the potential change in the law that might be coming today has been useful. If you would like more information about domestic partnership agreements, cohabitation agreements, or any of the other issues discussed in this post, please don’t hesitate to contact our office.