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.