Law professor warns of ‘vague and untested language’ in anti-LGBT amendment

Domestic partner benefits, child custody and visitation rights, wills, trusts and powers of attorney still on the line

by Matt Comer  Editor  editor@goqnotes.com
Published: September 11, 2011 in News

RALEIGH, N.C. — A professor at the University of North Carolina School of Law reached out to state lawmakers via email today, warning them about the potential negative effects of “vague and untested language” included in a new version of an anti-LGBT constitutional amendment up for consideration in the Senate on Monday.

Professor Maxine Eichner made similar warnings about the amendment in a press release issued yesterday by statewide advocacy group Equality North Carolina. She went a step further today, outlining in detail her opinions on the potential, far-reaching effects of the revised amendment language. Her message was sent via email to all 170 members of the North Carolina General Assembly on Sunday afternoon.

“The first sentence of the Amendment, which remains unchanged, does not simply place this state’s current statutory prohibition of same-sex marriage into the North Carolina Constitution,” Eichner wrote. “Instead, it prohibits state recognition or validation of ‘domestic legal unions’ except marriage. In doing this, the proposed Senate bill would introduce into the Constitution a phrase that has never been used in any prior law in North Carolina, never been interpreted by its courts, and never been interpreted by courts in any other state.”

Addressing the revised amendment, leaked to media on Friday evening, Eichner said several vital areas of the law could be impacted.

“The revised language only limits broad readings of the original sentence’s vague and untested language that pertain to private contracts,” she wrote. “It does nothing to preclude the possibility that courts will read that language to invalidate other rights and obligations connected with the relationships of unmarried partners that do not involve contracts.”

Eichner continued, “The Amendment still has the potential to invalidate domestic violence protections for members of unmarried couples, as an Ohio court did with even narrower language in its state’s marriage amendment. The Amendment could still interfere with existing child custody and visitation rights that seek to protect the best interests of children. The revision does not preclude courts from reading that language to invalidate trusts, wills, and end-of-life directives — which are not ‘private contracts’ — in favor of an unmarried partner. Further, the revision would still invalidate domestic partner benefits now offered by several municipalities.”

Read Eichner’s full email to legislators here.

Lawmakers are set to return to Raleigh on Monday. A hearing is set for the revised amendment, HB 61, in the Senate’s Judiciary I committee at 1:30 p.m.

On Monday evening, statewide advocacy group Equality North Carolina will hold hometown vigils across the state. They are also encouraging supporters to join them for a rally opposing the amendment at the legislature’s Halifax Mall at noon on Tuesday, Sept. 13. Country singer Chely Wright, a lesbian, will headline the event. See our Q Events Calendar for more details on the statewide vigils and Raleigh rally.