Written by attorney Bobby L. Bollinger Jr.

North Carolina's Amendment One Guts Domestic Violence Laws

On Primary Day, May 8,North Carolina voters will decide whether to amend the NC Constitution for the first time in many years. On the ballot is “Amendment One," an amendment sought by conservative politicians in an effort to prevent forever our General Assembly and our appellate courts from authorizing gay (same-sex) marriage in the Old North State. This Amendment will gut our existing laws providing domestic violence protections to unmarried victims. This Amendment is written very broadly and it does a lot more than simply banning same-sex marriage.

Here is the text of the Amendment, which is also known as Senate Bill 514 and Session Law 2011-409:

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.

The first sentence is full of potentially adverse consequences to many relationships between men and women, especially when domestic violence is an issue. The Amendment states that a marriage between a man and a woman is “the only domestic legal union that shall be valid or recognized in this State."

What does that really mean? Well, let’s look at the existing domestic violence law in North Carolina that defines protected relationships between men and women.

In NC, we have an excellent chapter in our statutes known as “Chapter 50B" that deals solely with “domestic violence." Our law defines “domestic violence" as an attempt to cause bodily injury, or actually causing an injury, to a person living in one’s household, or attempting to cause, or causing, bodily injury to someone with whom the abuser “has or has had a personal relationship…." This term “personal relationship" is defined to include current spouses, “former spouses" and “persons of the opposite sex who live together or have lived together" as well as “persons who are in a dating relationship or have been in a dating relationship" and persons who have a child together. N.C.G.S. 50B-1 (2009).

When the victim of domestic violence is a former spouse, a fiancee, a girlfriend, or a live-in girlfriend, then Chapter 50B provides for certain protections. Among other things, the victim can go to District Court (even without a lawyer) and get an emergency restraining order, then a temporary restraining order, and finally a permanent restraining order, preventing the abuser from coming too close or harassing the victim. Violation of these orders is taken very seriously by our law enforcement agencies and violators are typically arrested on the spot. In the most serious cases, the District Court can also use Chapter 50B to require the abuser to surrender weapons, gun permits, and ammunition that he possesses, so as to protect better the former spouse, girlfriend, or children.

Now, think about this. If Amendment One passes in May, the Constitution is changed such that the only man and woman “domestic" relationships that are “valid or recognized" in this State are marriages between one man and one woman. Most of that “personal relationship" definition therefore becomes unconstitutional the minute this

Amendment passes. A married woman who is being abused by her husband would still qualify for protection under Chapter 50B, but all those other relationships fall under the ‘not valid or recognized’ category of the Amendment. A former wife being abused by her former husband would not qualify for protection, because she is no longer married to the abuser. A girlfriend or fiancée would no longer qualify for protection under Chapter 50B because she is not married to the abuser. This Amendment will take away all of these domestic violence protections from all victims except those who are currently married to the abuser. Why? It is simple. Those non-marital man-woman relationships (dating, former spouses, having a child together) will no longer be “valid or recognized" in North Carolinalaw under our newly amended Constitution.

It is important to understand what a Constitutional Amendment does to the law in general. This Amendment becomes effective upon passing, so if it passes, it becomes the law on the day after the votes are counted and the result is certified. As soon as the Constitution is amended, the legislators cannot pass a law that is contrary to the Amendment. Their hands are tied. The Courts cannot rule in a way that is contrary to the Amendment. Their hands are tied as well. The word “shall" is considered by judges to be mandatory, so judges will not have the legal discretion to ignore the Amendment and "recognize" a beaten-up live-in girlfriend as someone with a “valid" claim for a domestic violence restraining order. A Constitutional Amendment is sort of like a death penalty for any new law or judicial decision that might soften the negative impact of the Amendment. The Constitution is the final word of law and neither the legislature nor the courts, nor the Governor nor the County Commission, can do a thing about it once it passes. The only way to fix a bad Amendment is to repeal it with another state-wide vote. Think Prohibition, which resulted in a great increase in organized crime. It took years for this country to recognize that the amendment outlawing alcohol was a mistake and repeal it.

There are a lot of reasons to vote “AGAINST" this Amendment in May. One good argument is that we should not amend our Constitution to take away the current rights of the people of our State. Another good argument is that we should not embed official discrimination against gays into our Constitution. But the effect of Amendment One that is likely to trouble the greatest number of our citizens is this: Amendment One changes our Constitution in such a way that many victims of domestic violence can no longer be protected by our local District Courts. Unfortunately, that is exactly what Amendment One does—it will absolutely gut the domestic violence laws in this State, and prevent the legislature and the courts from fixing the damage. Any victim who is not married to the abuser will lose her—or his—legal protections under Chapter 50B as soon as this Amendment passes. We should all support the right of victims of domestic violence to obtain protection from our courts. We can show that support by voting AGAINST Amendment One in the May primary.

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