The Party Line
12:00 am
Thu April 26, 2012

Judges Will Likely Have Final Say On Amendment One

With early voting under way, North Carolinians have a variety of offices and issues to resolve leading up to the May 8th primary election.  But the voting contest that seems to be attracting the most attention is the proposed amendment to the state constitution regarding marriage.


And when asked about the issue, depending on how the question is posed, North Carolinians seem to be of two minds: against gay marriage, while at the same time for legal recognition of civil unions for gay couples.  The key to either passage or defeat of this amendment is how the issue is ultimately worded and framed in voters’ minds.


Public Policy Polling has been tracking the public’s collective opinion about the issue. The amendment is designed to enshrine into the state’s governing document language that defines marriage as between one man and one woman, something that state law already does.


Starting in September of 2011, PPP asked about both same-sex marriage and the constitutional amendment supported by Republican legislators in the General Assembly.  In that month’s poll, 61 percent of North Carolina voters said that they wanted same-sex marriage to remain illegal, but that 55  percent would vote against the GOP’s constitutional amendment that would appear to ban marriage, civil unions, and domestic partnerships for gay couples.


A month later, PPP found that the marriage amendment garnered 61  percent of likely primary voters, with 80  percent of GOP likely primary voters, 52  percent of unaffiliated/independents, and 49  percent of likely Democratic primary voters expressing support for the amendment. 


Then, in December 2011, 58  percent of likely primary voters said that they would vote for the amendment, a three-point drop in support. 


Democrats at that time were supporting the amendment, but only by 4 points (47-43).  Among independents, support for the amendment remained the same at 52  percent. Republicans, not surprisingly, continued to be in strong favor of the amendment (77-16).


Come 2012, the amendment was bouncing around between 56 and 58 percent—until this week’s latest poll. Support is down to 54 percent. What’s especially interesting is that, for the first time, Democrats are solidly against the amendment, 56  percent, to only 38  percent supporting it. This opposition caps a transition in opinion among Democrats moving against the amendment.


But Democrats alone aren’t enough to defeat the amendment. As is typically the case, both in the nation and the state, a coalition of one party’s supporters and independent voters is needed to put together a winning vote, whether it is for a statewide office or on this issue.


An interesting development is the lack of information about the amendment’s intent.  This is why you are seeing more advertisements — especially from those opposing the amendment — coming out to frame the issue.


The main opposition to the amendment is by the “Coalition to Protect NC Families,” whose ads are here and here.  Recognizing that the moral perspective was dominated by the amendment’s supporters, opponents have taken to the airwaves to frame the issue in a different context.


Amendment opponents most likely got their inspiration from the official explanation regarding the amendment, found here. In the official explanation, there is uncertainty about the term “domestic legal union” as used in the proposed amendment. 


In their ads, opponents refer to various unresolved issues — such as the relationship between unmarried couples living together, domestic violence laws, child custody and visitation rights, and end-of-life arrangements.


When enshrining public policy into either governing documents, such as constitutions, or passing legislation into statutes, language has a distinct power in creating meaning and defining ideas.  And in our system of governance, it is the power of the courts to decide what language means.


While one of the main reasons cited by amendment supporters was to prevent “judicial activism” on the issue of gay marriage, it appears that these unresolved issues will have to be decided by the courts, even if the amendment passes.


As Alexis de Tocqueville observed in his journey through the new American republic in 1831, “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”


While North Carolina voters have the opportunity to voice their opinion one way or the other on this controversial issue, the likelihood is that judges will ultimately cast the deciding vote regarding the meaning of one simple, but complicated, word: Marriage.