11 May 2012

Does NC Prop 1 Violate The First Amendment?

North Carolina Proposition One

On Tuesday (May 8, 2012), North Carolina voters approved Proposition One, a state constitutional amendment, effective January 1, 2013 with about 60% of the vote.  It says: "Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state."

Proposition One is discussed in a law review article styled paper by Eichner, et al., four University of North Carolina law professors, but the paper addresses its potential unintended implications in other areas of private law (family law, domestic violence laws, estate planning, powers of attorney, domestic partner benefits for employees), rather than its constitutionality.

Some reading broader than just a ban on same sex marriage must be intended, because same sex marriage was banned in North Carolina before this measure was adopted. The primary purpose appears to be to ban "civil unions" which are marriages between people of the same sex in all but name, affording essentially the same legal rights and responsibilities, and perhaps also to ban "domestic partnerships" between same sex couples that afford some, but not all, of the legal rights and responsibilities of marriage. But, the wording is anything but clear on precisely what effect it has because the phrase "domestic legal union" is not well defined in either plain English usage or legal practice and precedent. It is certainly susceptible to broader or narrower legal meanings.

If one reads broadly the term "domestic legal union," in the Proposition, which the North Carolina law school professors note "has never been used before in North Carolina, or interpreted in North Carolina courts," a meaning of "legally recognized allocation of rights and responsibilities in household affairs," it prohibits giving validity or recognition to a great many intrahousehold and intrafamily legal arrangements beyond the civil unions and domestic partnerships for homosexual couples that the measure was really primarily targeted at prohibiting.

Is This An Unconstitutional Limit On The Freedom Of Association and Privacy Rights?

One of the most interesting questions that this very broad language raises is whether it violates the First Amendment right to freedom of association, which applies in North Carolina and every other state via incorporation through the Fourteenth Amendment to the United States Constitution.

The First Amendment, which was adopted in 1791 (two years after the original U.S. Constitution that is now in force), says: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances."

The establishment and free exercise clauses and the freedoms of speech and of the press get most of the attention.  But, "the right of the people peaceably to assemble," often called the freedom of association, is part of the First Amendment as well and like the other rights set forth in the Bill of Rights, has been interpreted broadly over the last two centuries (and particularly in the late 20th century and early 21st century).

Read broadly, Proposition One prohibits, or at least legally burdens, many ways people may peaceably assemble with each other without a very particularized state interest holding that these arrangements are contrary to public policy.  Even if there is no constitutional right to recognize "marriage" per se, between anyone other than one man and one woman, this broader prohibition might abroad First Amendment rights to freedom of association.

The constitutionality of this kind of limitation is informed by privacy/freedom of association cases like Lawrence which held that it was unconstitutional to criminalize consensual sodomy between adults conducted in private, and Griswold, which held that access to contraceptives cannot be limited to married couples.  The line of cases that invalidated the notion that the legal rights of a child may not hinge on legitimacy, except in the most narrow of circumstances, and the case of Loving v. Virginia holding that miscegenation laws are unconstitutional, are also relevant.

Other Federal Constitutional Theories That Could Invalidate Proposition One

Equal Protection

Of course, freedom of association is not the only federal constitutional theory upon which this state constitutional amendment can be challenged.  Equal protection considerations under the Fourteenth Amendment to the United States Constitution, such as those articulated in Romer v. Evans and reiterated in the recent holding of the United States Court of Appeals for the 9th Circuit, provide that citizens initiatives may not be used to make a specific class of people strangers to the law who are not entitled even to seek legislative relief for themselves on an equal basis with other people.

The wording of Proposition One may escape equal protection considerations on the theory that it disadvantages far more domestic arrangements than gay marriage and gay marriage lite, making gays uniquely strangers to the law as the Romer v. Evans proposition in Colorado did.  But, the more that Proposition One does not abridge equal protection considerations, the more it runs up against freedom of association, privacy, full faith and credit and impairment of obligations of contracts concerns. 

Full Faith and Credit

There are also questions about the extent to which this broader language constitutes a violation of the Full Faith and Credit clause of the original 1789 constitution (Article IV, Section 1), that requires states to recognize the legal acts of other states, beyond the limited exemption that DOMA, the Defense of Marriage Act, authorizes to allow states to ignore full fledged same sex marriages from other states.  This is an exception whose constitutional validity is itself the subject of challenge, although with less of an anticipated chance of success than the challenge to its provisions related to federal non-recognition of same sex marriages that are valid under state law, because Article IV, Section 1 provides that "congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."  This clause provides a fig leaf of express delegation of authority to Congress to enact the full faith and credit provisions of DOMA.

Laws Impairing Contracts

And, with respect to arrangements already in place when Proposition One takes effect, there is a fair question as to whether this measure constitutes a law that is invalid because it is a law "impairing  the obligations of contracts," something prohibited by the original 1789 Constitution in Article II, Section 10.

Federalism and Private Law

Buried in the debate over Proposition One is a reality of modern American federalism.  In practice, it is quite difficult to delegate the regulation of private law, governing the non-governmental interactions of non-governmental actors, to state and local governments.  We learned that the first time as a nation from almost ninety years of trying to manage existing in a federal union where different states could adopt differing rules on the private law issue of the permissibility of slavery and indentured servitude.

We are continuing to face those issues in areas like private sector and state and local union-management relations, medical marijuana, and gay rights.  In practice, federal constitutional and statutory law in a system where Congress has near plenary power backed by the Supremacy of federal law, and interstate and international transactions and migrations of private parties, mean that it is quite challenging for states to adopt different private law rules on matters of great practical importance for long periods of  time without creating a pitched internal legal mess that is rarely sustainable.  If all else fails, and Congress clearly lacks the authority to regulate some matter within the scope of state law authority, it can and has in the past, simply bribed them to adopt uniform rules, something it has a track record of doing with success.  In American politics, state and local government greed usually trumps state sovereignty.

Countries like Germany and Canada addressed this issue by placing much more authority over private law matters in the central government than the U.S. Constitution does (at least on its face) and leaving state and local governments with authority mostly to provide public services and administer central government blessed private laws.

But, while the American system of federalism doesn't require uniformity (and on some issues it manages to tolerate differences that the European Union finds to be essential to the functioning of its union of multiple sovereigns), it is not a system of federalism capable of accommodating extremely different legal and governmental arrangements in different constituent states. 

Even the modest challenges involved in Louisiana having a legal system rooted in French civil law, while the rest of the nation has a legal system rooted in English common law, have largely been overcome simply by forcing Louisiana to operate a hybrid system in which many core common law legal principles that are foreign to the French civil law system apply anyway, for reasons more bureaucratic than substantive.

American innovation is a bit like innovation within a franchise system or big business.  A little local color can be tolerated, but wholesale deviation from the master plan, a plan that in practice goes far beyond what is stated in the U.S. Constitution, simply does not work very well.  And, when the master plan is shifted on a national level, in pretty short order, the rest of the nation usually shifts with it in almost every state where the issues involved have any salience.


Michael Malak said...

Although as a Catholic I don't think gay marriage should be legal, I have to admit Prop. 1 and other bans are unconstitutional.

Those who are in favor of gay marriage bans act as if "Judeo-Christianity" is the official state religion, which of course is prohibited by the U.S. First Amendment.

Digression: North Carolina has its own constitutional freedom of religion, but presumably Prop 1 carves out an exception for marriage, so gay marriage advocates would have to rely on the U.S. Fourteenth Amendment incorporation of the U.S. First Amendment, which practically speaking is a strong leg to stand on (though of course abhorrent to the anti-incorporatists, a set which somewhat overlaps the anti-gay marriage set).

Andrew Oh-Willeke said...

Of course, anti-incorporatitionists tend not to be so vehement when incorporation of the Second Amendment is the issue.

Policy usually trumps process.

Michael Malak said...

In my (minority) opinion, the Second Amendment lies outside the question of incorporation because it states it is "necessary to the security of a free State" and uses the passive voice for the enforcement ("shall not be infringed"). I.e. besides being a "natural right" as many claim, the text itself suggests that the federal government has an interest in ensuring all the states remain free, and that if the states were to infringe upon this it would jeopardize the federal government. This is in contrast of course to the First Amendment which ascribes enforcement to Congress, placing it solidly as a limitation only upon the federal government (until the Fourteenth Amendment came along).