Jul 17, 2012

UNC School of Government Weighs in on Amendment One Impact to Domestic Partner Benefits

Chapel Hill, N.C. - A new position paper by Diane M. Juffras of the UNC School of Government suggests that the passage of Amendment One would not bar municipalities from offering domestic partner benefits to public employees. Currently, nine towns, cities and counties in North Carolina offer domestic partnership benefits to public employees, including same-sex couples and their children. In 2013, the City of Charlotte will become the tenth.

In her position paper, “Amendment One, North Carolina Public Employers, and Domestic Partner Benefits,” Juffras, , Associate Professor of Public Law and Government at the School of Government and a specialist in the areas of employment and employment discrimination law, finds that current domestic partner benefits are not invalidated by the language of the Amendment ("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.")

As part of her 34-page brief, Juffras writes:

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 statutory 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.

"While the scope and impact of Amendment One remains unclear, we will not waver in our fight to preserve domestic partner benefits for unmarried couples as well as other protections for LGBT families living and working throughout North Carolina," said Stuart Campbell, executive director of Equality NC. "Ms. Juffras' expert opinion provides substantial legal fodder not only for local municipalities hoping to hang on to the very competitive benefits that draw the most attractive candidates to these North Carolina locations, but also to the towns, cities and counties all across the state that are considering offering the same."