[Ed. Note — As the year winds down, contributor Jason Yonce shares his thoughts on this year’s tremendous political climate, including spring’s Amendment One campaign in North Carolina, court challenges to anti-gay laws and last month’s historic electoral victories in Maine, Minnesota, Maryland and Washington. — Matt Comer]
In 2010, North Carolina’s General Assembly had, for the first time in 136 years, a Republican majority. The amount of odious legislation that ensued would take up several pages but the anti-LGBT Amendment One was, perhaps, their largest victory. The amendment, despite fairly overwhelming opposition in the polls and two-to-one outspending by its opponents, was ratified. Republican lawmakers forwent the amendment taking effect on Jan. 1 and made it the law of the land upon certification by the secretary of state.
The story of gay rights from 1995 up until the ratification of Amendment One would be another lengthy essay but there was much more fundamentally wrong with the electoral picture of North Carolina. The North Carolina House of Representatives had 44 unopposed seats in that election. The North Carolina Senate had 11. The majority of these seats were not held by any single party but Amendment One’s passage in the General Assembly happened along party lines. Therefore every single unopposed Republican ultimately voted in favor of Amendment One. A lone unopposed Democrat voted for it in the House.
Those numbers of unopposed seats increased in 2012 to 52 in the House and 19 in the Senate. These unopposed seats were equally divided in the House and were roughly equal (11 to 7 in favor of Republicans) in the Senate. Inner Charlotte and the Research Triangle were overwhelmingly Democrat and the periphery of Charlotte and Onslow County (home of Camp Lejeune) were overwhelmingly Republican. Either way the majority of those seats were unopposed. Indeed there are likely practical reasons particular parties eschew those locations when their defeat would be likely.
I can’t speak for Republican election strategies but the Democrats, under Howard Dean, were guided by the Fifty State Strategy which focused on getting Democrats elected at every level. North Carolina also grants ballot access to the Libertarian Party which seems stuck on just placing names on the ballot and very little else strategically. One of the more memorable Rumsfeld Rules outlined by former Secretary of Defense Donald Rumsfeld was that you can’t win an election if you don’t run. Despite the overwhelming success of Dean’s strategy in the 2006 midterm elections and in the election of President Barack Obama, this strategy was disparaged by Rahm Emmanuel who preferred focusing on “winnable districts.”
Amendment One passed with the blessing of about 1.3 million North Carolina voters on the day of the Republican primary. Those numbers constitute about 19.5 percent of our registered voters and 13 percent when you adjust for the entire population registered or unregistered. At every level of the ratification process Amendment One was a poor example of how representative democracy should operate.
North Carolina lacks an initiative and referendum process similar to California. A constitutional convention can only be called with the blessing of the General Assembly and only after it’s voted on in a statewide election. The last time this occurred was in 1875. It’s a bit of an historical oddity but the 1875 convention was called in order to pass an amendment to ban interracial marriage.
Given this remarkable stacking of the deck this leaves North Carolinians with really one option for overturning Amendment One: a judicial challenge. Despite the arm flailing over the American judiciary and its “activist judges” one can clearly see how in many states it is the only method for overturning constitutional amendments or legislation that exhibits such a clear animus toward a particular group.
And, thankfully, this has been done already. The first successful challenge to the infamous Bowers vs. Hardwick, which upheld state sodomy laws, was Romer vs. Evans which struck down a Colorado state constitutional amendment (Amendment 2) which forbade any sort of protected status for the LGBT community. In Justice Kennedy’s opinion for the court he states:
“Homosexuals, by state decree, are put in a solitary class…The Amendment withdraws from homosexual, but no others, specific legal protection from the injuries caused by discrimination…”
Examined under intermediate scrutiny, the middle of the road for judicial review, the Supreme Court decided that Amendment Two had no legitimate state interest. “A state cannot deem a class of persons a stranger to its laws.”
Justice Scalia predictably wrote the dissent lambasting Kennedy’s opinion as “long on emotive utterance and so short on relevant legal citation.” Of course, Scalia’s own legal citations seemed limited to Bowers vs. Hardwick from 1986 and from decisions regarding polygamy in which he seemed to reiterate the domino effect theory that gay rights would have by bringing about recognition of polygamy, zoophilia, etc.
Scalia then offered this goofy caricature of the urban LGBT community:
“The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities…have high disposable income… and, of course, care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide.”
Even if this image of a wealthy, politically-active urban gay male was accurate it smacks of disenfranchisement the way Justice Scalia deems it necessary for gay rights opponents to seek redress from the state to strike down democratically passed city ordinances protecting LGBT rights.
If this doesn’t sound familiar, it should. Amendment One overrides similar laws (in this case domestic partnerships) in eleven North Carolina counties and municipalities some of which (Chapel Hill and Carrboro’s) had been in effect since 1995.
Granted I am oversimplifying the massive text of Romer vs. Evans and my hopes that it could be used to challenge Amendment One is probably the doctrinaire rambling of a commentator at best. Romer went on to establish precedent for Lawrence vs. Texas in 2003 which ultimately overturned Bowers and placed state sodomy laws in the ashcan of history.
Judicial challenges to anti-gay marriage amendments are coming to the Supreme Court in the near future. Perry vs. Brown, a challenge to California’s Proposition 8 will be heard by justices in the spring, along with another case challenging the federal Defense of Marriage Act passed in 1996. A challenge to Amendment One may ultimately be unnecessary but it could still be a worthwhile battle. Statewide polling in 2012 showed a fairly sizeable opposition to Amendment One. Its ratification despite this could be chalked up to a Bradley Effect where those polled vote differently than they said they would. However, it also seems likely that some North Carolinians saw this is an amendment banning marriage rather than the sweeping illegalization of partnership rights that had already existed in many areas. A compelling case could be made.
Two months ago I tried writing an essay for the Gay and Lesbian Review in which I tried to place Amendment One in a broader trend of retroactive illegalization going around the United States. The editor declined my piece saying that it would be outdated after the election in which Maine, Minnesota, Maryland and Washington would have marriage referendums on the ballot. I scoffed then but now I can say that it was the best crow I’ve ever eaten and I’ve never been happier to be wrong. The nation as a whole is going in a positive direction on marriage equality but those who have studied history know the South will never move unless it is acted upon. I think we have a great opportunity here from inside its borders to perform that action.