Jesus and his original Defense of Marriage Act

‘Tis fitting that the Supreme Court chose to hear oral arguments in two groundbreaking marriage cases during Holy Week.   The week we Christians remember the death and celebrate the resurrection of our Savior.  Yet, nine human justices have our attention and we are frenzied about which way the Court will rule.

For a recent Constitutional Law assignment, I gorged myself on briefs filed in US v. Windsor – the case to be heard tomorrow challenging the constitutionality of the Defense of Marriage Act (DOMA).  After examining the parties’ well-crafted legal arguments relying on centuries of precedent, this is where I land: why we celebrate this Sunday is far more capable of defending marriages than what happens in the high court on Wednesday.

Tomorrow, the Court will hear lawyers argue why it should apply heightened scrutiny over rational basis.  Why homosexuals should be deemed a “quasi-suspect” class.  In no more than two hours total, attorneys will make a case that “yes, homosexuals have been victims of discrimination” or “no, their political voice has never been slighted.”  Accomplished lawyers will make sophisticated policy arguments urging the Court to consider traditional views of marriage, not increasing public support for same-sex marriage, in their decision.  Or vice-versa.

But all arguments are no more than man-made science.  Justices will apply judicial “tests” (that may be no more than a couple decades old) to the law at hand.  They will publish a decision that will be a short read; and we will feel either vindicated or wildly disappointed in our country.  But enough with SCOTUS talk, let’s get back to Easter.  We have a God who cares about all this legal stuff, but is far bigger that it.  To say that He has a position on DOMA (to which all Christians must subscribe), I’m not convinced.  Heightened scrutiny is not in the Bible; it came about because of a footnote in a 1938 Supreme Court decision.  Equal Protection case law will be the Court’s guide here, not Scripture.  And to demand anything more of the Court (or our government in general) is well-intentioned, but places too much stock in man-made things that do not possess ultimate authority on anything.  Congress meets in Washington, not in Eden. 

Federal and state laws condone plenty of things that are antithetical to biblical principles — even things related to God’s design for marriage.  For instance, there are just over 200 chapters in North Carolina’s body of General Statutes, and exactly one is devoted to dissolving a marriage and dividing up marital property.  While clergymen have the privilege of marrying couples under state law, all it takes is the entry of a judge’s order to make a divorce legal.  In NC, adultery merely bars a spouse from receiving alimony in a divorce settlement, but it is legal.  Children born outside of wedlock are recognized.  With proper evidence, courts can legally terminate all rights a parent has to his child.  We are so far from Eden.

So what does it mean if the federal government has to recognize same-sex marriage?  It means equality under our nation’s civil laws for people who have long sought it.  It does not mean total restoration, healing or abolishment of marital sins across our land.  Marriage was, for a long time, a means of survival and necessary for financial viability once you left your parents.  Today, not so.  We clumsily rely on God to show us the way, as we marry out of a desire for companionship.  And He — in His sovereignty — may choose to give us lasting marriages, lonely marriages or even failed marriages.  Or no marriage at all.  Things true for opposite-sex and same-sex couples alike.  We are at His complete mercy, not the federal government’s.  And for our hope, we must wait for Sunday, even as we listen in on Wednesday.

Turning to the Windsor briefs, I read five in all: the three submitted by recognized parties – the United States, the Estate of Windsor and BLAG (Bipartisan Legal Advisory Group) – as well as an Amicus brief for each side: one opposing the DOMA, on behalf of 278 Employers and Organizations Representing Employers, and one supporting DOMA, on behalf of the National Association of Evangelicals, et al.  What follows is a reflection on their respective legal arguments in light of the most recent equal protection cases decided by the Court. (Warning: lots of legal mumbo-jumbo from here on out, but hopefully informative if you want to stick with).

The precise Question Presented in Windsor reads: “Whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.”[1]  In other words, “Does the Constitution prohibit the federal government from ignoring the marital status of validly married same-sex couples who live in states allowing same-sex marriages?”  While states come up with their own rules about what a person needs to be and do to get married, DOMA prohibits the federal government from recognizing same-sex marriages under federal laws – e.g. taxes, social security, benefits, etc.

Having read these Windsor briefs and a variety of key Supreme Court cases on marriage, I would say the deck is stacked against DOMA.  The last century of jurisprudence on marriage and equality seems to point toward a clear result: that DOMA will be found unconstitutional.  Seminal cases on 5th Amendment Equal Protection (Bolling), the fundamental right to marry (Loving) and sexuality (Lawrence) in concert, seem to say that the federal government cannot treat same-sex marriages and opposite-sex marriages differently under the law.

Since this is an equal protection inquiry, the Court must determine what test applies: rational basis or heightened scrutiny.  Because the Court has not yet determined what level of scrutiny sexual orientation deserves, the question simply remains unanswered.  And the future of DOMA will thus turn on the Court’s answer.

In opposition to DOMA, the US and Windsor argue this is “the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under the law.”[2] They assert two core arguments: 1) that classification based on sexual orientation should be subject to heightened scrutiny, and 2) that DOMA fails an Equal Protection challenge when heightened scrutiny is applied.  They argue that the four factors that the Court has historically relied upon for strict scrutiny are satisfied here: 1) gays and lesbians are a group of people with distinguishing characteristics, 2) who have been subjected to a history of discrimination, 3) their sexuality bears no relation to their ability to contribute to society, and 4) they are minorities with limited political power.  Appellants argue that just as the Court reasoned that racial minorities deserve heightened scrutiny, it should do the same here.

Further, appellants argue that if the Court looks for a compelling state interest to keep DOMA as good law, Congress has none.  Congress’ moral disapproval of same-sex marriage, defense of the institution of “traditional heterosexual” marriage and promotion of responsible parenting and child rearing are not compelling enough for DOMA to stand, says the appellants.  Nor are there any “actual purposes” stated in DOMA or in the accompanying House Report for the law.[3]  The US brief points directly to Lawrence where the Court struck down a Texas same-sex sodomy criminal statute because it “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”[4]  Furthermore, US and Windsor argue that DOMA would too fail a rational basis test (if that’s where the Court lands) – DOMA is irrational and achieves no federal purpose.

In rebuttal, BLAG adamantly claims that rational basis is the test that applies here, and in turn, it offers three reasons that the federal government could rationally define marriage as it did in DOMA: 1) to provide a stable structure to raise unintended and unplanned offspring, 2) to encourage the rearing of children by their biological parents, and 3) to promote childrearing by both a mother and a father.  As I read through these arguments, I could not help but think of the plethora of federal law that accomplishes quite the opposite.  For instance, via the Adoption and Safe Families Act of 1997, Congress began offering states financial incentives to think less about returning children to their rehabilitated natural parents, and more about permanently placing removed children with adoptive parents.  It is hard to live in modern America and not know how frequently we the people (whom Congress represents) experience divorce, children born out of wedlock, neglect, abuse and single-parent homes.  Congress’ reasoning for DOMA rests on an ideal that does not match the reality of many American families, nor with the Court’s broad definition of “family” (Moore).  Nevertheless, we learned in Williamson that under the rational basis test, even if one thinks a law is “silly” – if there is some rational basis and some governmental interest, the law stands.

Additionally, BLAG argues that homosexuals have never been denied the right to vote – so they should not be considered a minority with little political power.  The US quickly strikes that argument down – pointing out that citizens born out of wedlock have never been denied the right to vote – but yet the Court has found grounds enough to afford them heightened scrutiny.

Finally, the Amicus briefs help shed light on the moral institution of marriage and modern practicalities relevant to DOMA.  The National Association of Evangelicals (along with other religious groups) begins its brief, “The voices of tens of millions of Americans are represented in the broad cross-section of faith communities that join in this brief.”[5] Like BLAG, they argue rational basis is the proper test here, and argue that a modern view of marriage has strayed from tradition: “two adults in intimate relationship who seek the State’s authorization of that official status and the approval that comes with it.”[6]  They claim that this view does not consider procreation and child-rearing, as the traditional view of marriage does.   Further, they quote cases about opposite-sex marriages as evidence the Court never intended to recognize same-sex marriages.  Yet, the very holdings of these cases stood for ground-breaking expansions of civil rights (Loving) or individuals whose liberties have been restricted because of their unlawful conduct (Turner).  While their moral and traditionalistic policy arguments are perfectly reasonable, they do not pack the same legal punch that DOMA opponents do – with arguments built upon binding precedent.

The only Amicus brief in opposition to DOMA filed at the time this was written is one on behalf of 287 employers who “share a desire to attract, retain, and secure a talented workforce”[7] and are located in states that presently recognize same-sex marriage.  In short, these employers say that opposing federal and state laws “uniquely burden” them – in the way of increased administrative costs and complexities.  What is more, they are being asked by the law to treat employees differently based on their sexual orientation – something that damages the welfare and morale of their workplace.  In theory, Congress set out to have equal protection of all same-sex marriages under federal law, but in practice, employers in states where same-sex marriage is legal, there is anything but equal treatment of married employees.

Reflecting upon key equal protection and marriage cases and the Windsor briefs, I cannot help but believe this will be a clear and swift opinion from the Court.  In the same way that the Court spent very little time rehashing the merits in Brown, this could likely be a similar scenario.  Then, the Court recognized that separate was not equal for our nation’s students, and now, it may recognize similar disparate impact is present here – and declare DOMA unconstitutional.

[1] Brief for the United States, p. (I), US v. Windsor (2013).

[2] Id, 54.

[3] Id, 15.

[4] Id, 19.

[5] Brief for the National Association of Evangelicals, et al. as Amicus Curiae, p. 1, US v. Windsor (2013).

[6] Id, 11.

[7] Brief for 278 Employers and Organizations Representing Employers as Amicus Curiae, p. 1, US v. Windsor (2013).

Women’s Suffrage Redefines Our Jurisprudence

*Below is a short essay that I wrote in the Fall of 2012 for my Constitutional Law class. The societal shift that happened when women finally gained the constitutionally protected right to vote should not be overlooked.  And (according to one bright Constitutional Law scholar) it changed the way we should look at our nation’s jurisprudence as a whole.  I hope this is accessible to law students, and non-law students alike.  Good stuff.  Also, I end the post with a video that is quite relevant.  Enjoy!

PS- Working on a piece or two on cases that are to be heard by the Supreme Court this spring- challenging the constitutionality of the Defense of Marriage Act (DOMA).  Stay tuned – fascinating stuff!


Constitutional law scholar and Yale Law Professor, Akhil Reed Amar, has written a number of books on the United States Constitution, but his most recent, America’s Unwritten Constitution: The Precedents and Principles We Live By, examines a handful of novel (at least to me) theories of interpretation – in particular what the ratification of the Nineteenth Amendment did to judicial review.  We have long been “reading between the lines,” argues Amar; thus, it is all the more critical that we (as students of the text, citizens and jurists) know the “unwritten” phenomena that help us better apply the Constitution to federal and state action.  One of those lenses is the “feminist rule of construction.”  In very clear, eloquent prose, he offers a chapter full of reasons why the Nineteenth Amendment (granting women the right to vote) changed the way we should be reading and interpreting law.

The chapter’s title – “’Remembering the Ladies’: America’s Feminist Constitution” – is inspired by a letter Abigail Adams wrote to her husband in the spring of 1776, urging him to “remember the ladies and be more generous and favorable to them than your ancestors.” [1]  Despite her wisdom, John Adams and his fellow drafters did not heed much of her advice.  It was not until 1920 and Nineteenth Amendment before this came to pass.  Such an important fact in our nation’s history may not be fully appreciated by judges across the country examining the constitutionality of legislation. It was certainly not appreciated by me before this book.

Simply put, in 1920, the Nineteenth Amendment doubled the franchise in our nation.  Thus, the Preamble’s phrase “we the people” took on much broader meaning overnight.  In turn, Amar suggests that statutory interpretation of laws drafted before 1920 should be viewed differently than those enacted after.  His “feminist rule of construction” makes a crucial point: “all laws, especially those enacted before women achieved full political equality, must now be construed with attention to women’s equality and with particularly sensitive awareness of the political exclusion of women in earlier centuries.” (305)  This approach had never occurred to me before – and quite frankly, I will never forget it.  It seems something that should be so fundamental to our constitutional studies – especially as we distinguish the Constitution from plain statutes.  The former is a document directly of the people; the latter formed by elected representatives of the people.  And while I have not seen such a theory play out in a courtroom, it seems to be a compelling argument if done well and applied to the right law and facts.

What is more, the adoption of Nineteenth Amendment “amends” the wrong done to women before 1920.  Nothing in the original Constitution grants males the affirmative right to vote, and no provision expressly precludes women.  The “wrong” was mere social construct and a “glib assumption that before 1920, male voters and lawmakers always properly protected the legitimate interests of nonvoting females.” (284)   Women’s suffrage “was an official recognition that the previous exclusion of women from the franchise had indeed been wrong and deplorable by the more enlightened standards of the post-woman-suffrage Constitution itself.” (284)

From this should flow a natural shift in our post-1920 constitutional interpretation; we should be asking “how to factor this profound implication of women suffrage into proper constitutional interpretation.” (284)  For instance, reproductive laws and other rules (made before 1920) unique to women are inherently unfair if women had no vote in the matter.  Amar never suggests that interpreters should try to imagine how constitutional language would have been drafted had women been allowed to vote early on – such an exercise would be a “mind-bending thought experiment of such indeterminacy that all legal constraint would be lost.” (283)  Instead, he urges jurists to infuse into their constitutional interpretation a distinction between pre- and post-1920 America.  Just as much as we spend time analyzing the intent of the Founding Fathers, we should examine the aim of the “amending sons and daughters,” says Amar. (283)  Here again, his analysis expanded my prior thinking about traditional categories (e.g. original intent, strict construction, etc.)  – and how they may fall short of rich legal theory that can help novice attorneys expand their toolkits.

He examines laws governing women’s reproductive rights – namely in the two seminal cases (Griswold v. Connecticut and Roe v. Wade) which challenged state laws enacted in the mid-1800s by all-male legislators, elected by only male voters. (291)  Amar argues the feminist rule of construction must be applied to these laws when being litigated post-1920.  If these laws result in restriction on women’s liberty and freedom, and keep them from having careers outside the home, then the Nineteenth Amendment may have something to say about them.  That is, the amendment “narrows the range of possible outcomes, and various elements of America’s unwritten Constitution—structural inferences, logical entailments, principles of interpretative coherence, and common sense.” (283)  In light of the current debate over the government’s intervening in issues of women’s health, it had not occurred to me that the Nineteenth Amendment may be a good way to buttress arguments in favor of granting women more freedom to decide.

Further, Amar points out that the Nineteenth Amendment gives Congress authority to enact “appropriate legislation” to enforce the amendment’s letter and spirit.  Combine that with McCullough and it would follow that Congress can embrace all kinds of women’s equality laws– so long as “the end be legitimate…[and] all means…are appropriate.” (McCullough)  Further, he criticizes the Morrison court for failing to ponder the “unwritten principle of popular sovereignty;” therefore, the result undermined a basic claim to the Constitution’s legitimacy.  He sums up the matter: “When the written Constitution can fairly be read in different ways, congressional laws that are enacted after the Nineteenth Amendment and are designed to protect women’s rights merit a special measure of respect because of their special democratic pedigree.” (282)  This notion has transformed the way I think about legislation like the Violence Against Women Act (VAWA).  While most would agree VAWA is the right thing to do, Amar’s analysis underscores the Congressional authority for existing federal law.

Finally, Amar considers the notion of “separate but equal” – how the social meaning of this phrase has evolved over time and how women’s suffrage informs it.  Prior to the 1960s, few women challenged laws entrenched in traditional gender roles (generally, women were fine staying at home while men worked outside the home); but the Equal Rights Amendment (ERA) in the 1960s offered proof that popular sentiment had changed.  Broad support of the proposed amendment, says Amar, “was entitled to interpretative weight as a popular gloss on the Fourteenth and Ninth Amendment, in keeping with the principles of America’s lived Constitution.” (296)  This modern example helped crystallize my understanding of constitutional interpretation – and how we can examine social phenomenon while continuing to uphold the integrity of the Constitution.  In light of the evolving social meaning of ‘separate but equal’, the Constitution’s “text at times gives later generations not the right answers but the right questions for us to ask and the right vocabulary for us as we begin thinking and arguing over those questions.” (303)  Now having the benefit of Professor Amar’s thoughts on the ‘feminist constitution,’ I will ask myself precisely the questions that he has astutely raised.

[1] Akhil Reed Amar. America’s Unwritten Constitution: The Precedents and Principles We Live By, 304 (2012).

Now for fun: Women’s Suffrage meets Lady Gaga

Immigration and the states: The not-so age-old debate

In his oral dissent from the bench in yesterday’s Supreme Court ruling on Arizona immigration law, Justice Scalia (in true Federalist fashion) conveyed that if the original colonies had known that they would be “at the mercy” of the federal government on immigration policy, they would never have entered the union in the first place. 

I had to smile when I read those words, because “immigration policy” was used with such ease.  Were we not a nation entirely of immigrants when joining the union was up for discussion?  Was not policy concerned with equal opportunity, freedom of faith and fair elections?

I respect that the nuances of state pre-emption are never easy to parse out (it is a difficult area of law no doubt).  But a presumption of how our founding fathers viewed immigration might prove fruitless.  This is a new issue, very new.  And it requires new legal thought and a good soul-searching of our nation’s collective convictions.  We can’t hide behind the infallible thought of predecessors on this one.

I have had only a thimble-full of exposure to immigration practice in my legal education thus far – but from what I have seen, it is fraught with complication.  Immigration courts churn with hundreds of cases at time, dozens of languages spoken over one another.  On one hand, it is beautiful; on the other, heartbreaking.  Federal agencies still make mistakes.  Prosecutors scramble to prioritize who to send home and who to let be.

While I believe immigration (like all areas of law) needs well drafted rules and clear case law, it is too simple to reach back and find the answer in a historical context where we were all immigrants becoming Americans, not Americans deciding how immigration should go.  Yesterday’s decision is an important one for the sake of immigration protocol – but still, I can’t help but think what good things have sprouted from our “melting pot” ways.  And how “immigration policy” was once a uniter not a divider.

 *A quick post here, but wanted it to be timely. This is a big week for Supreme Court decisions – hope to do more writing this summer in between semesters.*

NC Amendment One and the looking glass of Ghana

A little over a week ago, I returned to the states from Ghana; there, as part of a law school class, I spent 9 days traveling to various schools, orphanages, detention facilities and refugee camps in attempt to better understand children’s rights in West Africa.  A British colony that achieved its independence in 1957, Ghana is still heavily dependent on foreign aid – namely from the United Kingdom.  Very recently, the UK stipulated that if Ghana is to continue benefiting from such aid, Ghana must repeal a longstanding law which criminalizes homosexuality.  A Ghanaian charged with, and found guilty of, a mutually consensual relationship with a member of the same sex can be sentenced to up to seven years in prison.

Simply put, the British do not want to continue funding a nation state that persecutes its citizens in direct conflict with international human rights protocols; many of which Ghana has signed and agreed to uphold.  During a visit to one of Ghana’s three law schools, two of my fellow law students from Charlotte Law participated in a moot court debate on this very issue.  It was a gutsy move by our professor: pitting two Americans against two Ghanaians before an audience of about one hundred Ghanaian law students.  The Charlotte Law students led with cogent legal arguments – pointing out the inconsistencies between the criminal statute and international human rights treaties, not to mention Ghana’s very own constitution (“We the people of Ghana…in solemn commitment to….the protection and preservation of Fundamental Human Rights and Freedoms..adopt..this Constitution”).

The Charlotte Law students’ legal theories were met with staunch defenses of entrenched Christian religion and Ghanaian culture that is supremely offended by homosexuality.  Western influence and general immorality, they argued, were to blame – and Ghanaians did not have to change the laws which reflect the beliefs of its people.  While one can admire democracy in action, the reality is turning down foreign aid could create disaster for most countries in West Africa.  Hence, the reason it is such a hot topic right now.  Still, the students overwhelmingly agreed that on principle Ghana should reject the aid to preserve their majority beliefs – and by extension, Ghana’s sovereignty.

Upon returning to Charlotte, I walked into a Ghana-esque debate.  Lawn signs adorn my neighbors’ lawns shouting For and Against.  Facebook simmers.  We perk the ears of national media with our talk about Amendment One.  As I began to read and listen, I heard similar flurry of fear and emotions here in my beloved North Carolina.  Spoiler alert: we sound an awful lot like Ghana.   Ghana’s culture is predominantly Christian – and many who favor the criminalization of homosexuality see it not as a human rights violation, but as a necessary legal stick to beat off that which contradicts the Bible.  Ghanaians want authority to imprison homosexuals out of fear of the general degradation of society and morality; we want to withhold civil rights and privileges for many of the same reasons – in some cases, it could amount to a financial prison, or one of shame.

We want the words enshrined in our state’s constitution to alleviate our unfounded fears at the expense of real people.  Yet, we look at nations like Ghana and say how arcane.  The same gospel we proclaim on both sides of the Atlantic says there shall be no fear.

I will defer to others to make theological arguments for and against Amendment One (citing chapter and verse) – but what I would like to leave you with is this question: do we as Christians have a duty to inspect how our legal system will actually digest this amendment if it is passed as written, even if it seems at first blush that Bible-believing Christians must certainly be for this, theologically?

Many say the future of this issue has already been decided: that a younger generation, which mostly agrees that more than just married heterosexuals deserve legal status in our country, will soon have the majority.  But that does not excuse what the next twenty years may hold, and how the May 8th vote could impact those interim years.

While I have not yet passed the NC Bar exam, a few years of law school have given me new appreciation for how our legal system works – and frankly, how it does not work.  In light of this, there are a few things one might consider as we inch closer to May 8th.  The fine print may surprise.

  • The word choice and sentence structure of Amendment One mean something – so get acquainted with it!  In law, the definition of words, the use of qualifiers and the placement of commas can have tremendous weight.  Lawyers talk about the law being “silent” on certain things, and “black letter” on others.  What they are talking about is the actual words that are voted up or down by legislators – or in this case, by we the people.
  • Without careful inspection, we risk unintended consequences that may not be so apparent to the layperson’s eye.  If you need a crash course in how to interpret laws, a few important things to keep in mind:
  • The broadness of the language.  The scope of Amendment One is bigger than gay marriage (a technicality that may get lost in the shuffle of this debate, especially among Christians):
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.
  • No room for civil unions. If courts do not recognize domestic legal unions other than legal heterosexual marriages, then civil unions are off the table too.  Allowing the alternative of civil unions is often the argument that I hear proponents make in order to feel comfortable with voting for an amendment like this.  However, the amendment as written does not leave room for civil unions.
  • Removes leeway for equitable outcomes. Courts have long recognized “unofficial” (read: not married or not biological) relationships on principles of equity when deciding custody, domestic violence and estate matters.  For instance, couples who have lived together for a certain amount of time have a semblance of a “domestic union” in the eyes of the court – and are therefore eligible for certain domestic violence protections.  Should the amendment pass, those protections are no guarantee.  Additionally, if a non-biological parent has long held himself out to be the parent of a child but has not formally adopted him, then the court, in its discretion, can grant the parent and child certain benefits as if the child were biological or adopted.   This might not be the case after Amendment One – perhaps limiting only a natural parent those rights if a judge interprets the language as precluding certain domestic situations that would otherwise be permitted out of equity (a core pillar of our nation’s jurisprudence).
  • The vagueness of the language.  The amendment is vaguely written (most likely, intentionally vague by the legislature) and therefore, the interpretation will be punted to the court system.  Courts are in a word: unpredictable.  Benches vary from region to region, county to county.  That fate of a family may be at the mercy of how liberally or conservatively a judge reads the Amendment in conjunction with other relevant law.  Lawyers will stand before these judges making arguments about legislative intent and what the people of NC declared on May 8th; others will cry, “Judge, do what is equitable here!”  And it could be years before a reliable set of cases makes its way through the appellate process, enough that judges and attorneys are ready to rely upon the outcomes.  In the meantime, judges may deny custody orders to unwed parents (first clause) and committed homosexuals may not get the benefit of health care coverage if they work for an employer that chooses not to recognize domestic partnerships (second clause).
  • North Carolina already has a state law that limits marriage as between one man and one woman.  NC General Statute § 51-1.2 specifically provides: “Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.” This amendment would actually be usurping rights and privileges that are afforded to folks today.  If you are opposed to gay marriage, take a look at what already has been passed by the legislature, and how courts handle this issue today.  Do we need to go farther?
  • Contracting around this amendment costs money, and may exclude much of our state’s population from getting their legal affairs in order to ensure the outcomes they want.  For all manner of estate, family and financial planning matters, hiring an attorney to sort it all out in a valid, written contract costs thousands of dollars.  Simply put, this will mean that only the wealthy can take advantage of the amendment’s second sentence – which gives an alternate route for those who execute valid contracts.  If you have had to hire an attorney recently, you will likely appreciate that even the middle class find it too costly to retain counsel.  Until our system comes up with a better way to assist indigent citizens with adequate civil counsel, this amendment will create yet more legal hurdles for those of modest means.
  • A constitutional amendment is a big deal.  It is treated with much more rigor than your basic public law which can be repealed in a later session by elected members of the state legislature.  NC is one of 36 states that put constitutional amendments up for popular vote.  That means just over half the states in the union invite voters like you and me into this process.  That alone should compel us to take our responsibility on May 8th seriously!
  • If we try to make scriptural arguments in support of Amendment One, why then do we not demand our government enact scripture-minded approaches in all things – feeding the poor, universal healthcare, divorce, etc?  Cherry-picking issues makes us inconsistent voters who call ourselves Christians.   What credibility do we stand to gain if we vote in block support of this Amendment?  Very little, I would say.

I urge us all to take time in the next few weeks to truly understand the scope and impact of Amendment One.  Understand what it may mean as real judges read this amendment and apply it to real cases that affect real people.  Go sit in family or probate court for a few hours one day – see how this all fits together.

Amendment One is not a test of how well we can defend our theological high ground; it is not even asking us to reveal what we really believe about homosexuality.  Rather, it is an opportunity to look at two sentences and get educated on the actual legal implications – then go vote.  These are simple words that will be contemplated for years to come in courtrooms and judges’ chambers that most of us will never be privy to.  Forget yard signs, Facebook rhetoric and divisiveness.  Read up on both sides.  Take a local attorney to lunch.  Go sit in court.  Ask questions to confirm or challenge how you plan to vote.  Pray humbly and vote in complete freedom – trusting that Christ is far bigger than two sentences on your ballot.  He holds all things together, even in our legal system.