A 34-page legal brief written last month by Diane Juffras, associate professor of public law and government at the University of North Carolina School of Government outlines the reasons why North Carolina’s recently-approved anti-LGBT state constitutional amendment will not bar benefits offered by local governments to employees’ same-sex partners.
Durham’s Independent Weekly first reported on the brief earlier this week, which details three primary reasons why the amendment does not prohibit medical and other benefits for same-sex families:
In my opinion, Amendment One does not take away the authority of North Carolina local government employers to offer domestic partner benefits.
First, Amendment One has plain meaning on its face: (1) the state can allow only a man and a woman to enter into a marriage, (2) marriage is the only legal status that the state can grant an opposite-sex couple, and (3) the state cannot grant any legal status whatsoever to relationships between same-sex couples.
With this plain meaning, Amendment One merely puts into the constitution the North Carolina statuory law on marriage and civil unions between same-sex couples as it existed on May 8, 2012, and therefore effects no change on the ability of North Carolina local governments to offer their employees domestic partner benefits.
Second, there is no legal precedent in North Carolina or elsewhere for the proposition that a government employer’s coverage of its employees’ domestic partners under benefits plans makes valid or constitutes legal recognition of any union or confers rights and responsibilities to any union under the law. To extend benefits is not to “recognize” any kind of union.
Third, there appears to be a good chance that a court would find the denial of domestic partner benefits a violation of either the federal or the North Carolina equal protection clauses.
The legal brief is making its rounds across the state just two weeks after the Charlotte City Council included an extension of benefits to employees’ same-sex partners in their budget for this fiscal year. Though the city ultimately decided to move forward with the benefits, they and other municipalities are still awaiting official word on the amendment’s interpretation from the state’s attorney general. Mecklenburg County is also reviewing the amendment and its effect on their own domestic partner policy.
You can read Juffras’ full brief here.