Amendment One Faces Serious Legal Hurdle

By Austin Cook, News Editor

In recent months, state constitutional amendments banning same-sex marriage have fallen like dominos, struck down by federal judges in states ranging from Texas, Utah, Michigan and Virginia among others.

Next month, three judges from the U.S. Court of Appeals for the Fourth Circuit -- which covers Virginia, West Virginia and both Carolinas -- will meet to determine the fate of Virginia's ban on same-sex marriage. But their ruling could also upend North Carolina's Amendment One, approved by voters in 2012, which places a constitutional ban on gay marriage in the state.

"If they agree that Virginia's [amendment] is unconstitutional then I think by implication ours has to be," said Katy Harriger, chair of the department of politics and international affairs who specializes in the study of constitutional law.

Harriger said that based on the way the U.S. Court of Appeals operates, it would be very unlikely for the Fourth Circuit to limit its ruling to Virginia if that state's ban on same-sex marriage is ruled unconstitutional.

"I don't imagine any way in which that would make sense," Harriger said. "If you strike down Virginia's, the message to the people challenging North Carolina's is 'you're going to win if you bring it to us,' because there's nothing different between the two laws."

Amendment One was added to the state constitution by popular initiative on May 8, 2012, with 61 percent of voters supporting the proposed addition defining marriage as a union between one man and one woman.

The provision gained a great deal of national attention because of its banning of civil unions and domestic partnerships, a stricter measure than most other states have embraced.

But if the three judges meeting on May 13 for the fourth Circuit decide to uphold a federal judge's ruling which struck down Virginia's ban on same-sex marriage as unconstitutional, most scholars agree that this would likely also apply to North Carolina's Amendment One.

Despite dramatic changes in public opinion over the issue of same-sex marriage over the last decade -- and with many federal judges beginning to strike down statewide bans -- it remains a contentious and controversial issue.

A recent poll conducted by Public Policy Polling on April 10 showed that 40 percent of North Carolina voters feel gay marriage should be legal, while 53 percent think it should remain illegal. During the tumultuous time period when Amendment One was proposed, students had largely opposed it. Tr Easton, student government president at the time, proposed legislation to have SG formally condemn the amendment. Administrators also began to take sides on the controversial issue. Former Vice President of Student Life Ken Zick told the Old Gold & Black that he would vote against the amendment.

Since the issue has re-emerged, with a ruling possibly to be handed down in the fall, many students have expressed hope that Amendment One will be struck down.

Junior Grant Ferowich, co-president of College Democrats , said the organization strongly opposes the measure.

We see Amendment One as an unjust violation of the equal rights of all people. Amendment One does not respect all persons as equal before the law. Furthermore, Amendment One isn't even about making gay marriage illegal -- gay marriage already is illegal under previous law in North Carolina. Amendment One harms civil unions of all kinds -- it is bad for families, and it is bad for North Carolina.

Sophomore Alana Harrison, a former member of the executive board of the university's College Republicans also opposes the state's ban on same-sex marriage.

"Not only is North Carolina taking rights away from same-sex couples, they are weakening the protective laws for domestic violence victims," Harrison said. "No matter political views, everyone deserves equal treatment and protection."

Over the past few days, state Attorney General Roy Cooper has asked a judge to delay hearings for a lawsuit filed by the American Civil Liberties Union (ACLU) challenging Amendment One. Cooper said that the ruling of the Fourth Circuit will decide the future of the amendment anyway, and it would be unwise to interfere with the proceedings.

Harriger said that regardless of Amendment One's fate, if the Fourth Circuit strikes down Virginia's ban on same-sex marriage, it will likely put more pressure on the Supreme Court to take up the issue in the near future, despite the Justices's past reluctance to issue a sweeping ruling on the issue of same-sex marriage.

"If there end up being differences among the Circuits, that's almost always a trigger for Supreme Court review," Harriger said. "I don't think they're going to be able to dodge it."