Alliance Defense Fund | Ari Ezra Waldman | Discrimination | Gay Marriage | Law - Gay, LGBT | LGBT Rights | North Carolina

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Three Lessons from North Carolina's Amendment One

BY ARI EZRA WALDMAN 

Vote Against Amendment 1Yesterday was a day of great loss. The odious Amendment One in North Carolina passed for a variety of reasons, including the un-Christian messages spewed forth by Christian messengers, a Republican base galvanized by social conservatives leaders who have hijacked the Republican party, confusing wording, ignorance, and just plain hatred.

Supporters admitted that racial supremacy was behind the need for Amendment One. The leading Republican in the State legislature said the anti-gay Alliance Defense Fund drafted the language. And, then, of course, there were shrill screams that gay predators are hurting children.

Amendment One's language states: "A Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State."

It is striking for its breadth, encompassing not only gay marriages, but civil unions and other forms of domestic partnerships, and even undermining the validity of domestic violence protection laws. The new provision in the North Carolina State Constitution is also villainous, for its purposefully confusing syntax and for the clarity of its hateful message: No gays need apply!

This doubling down on discrimination offers us a teachable moment about the question for equality and honor for gay persons. It proves the importance of impact litigation, highlights the danger of allowing our rights to be subject to popular vote, and shows us why we should vote for President Obama and his progressive allies in Congress.

CONTINUED, AFTER THE JUMP...

Yesterday's vote in North Carolina was another trip to the ballot box that ended badly. Despite the best efforts of groups like Protect All NC Families, no sum of money, no legion of foot soldiers, and no well spring of truth could fight popular fear and antigay animus so ingrained that logical, intellectual, and factual appeals meant nothing. It proves that, as yet, the only way forward for recognizing the true equality of gay persons is through litigation, where pure hate cannot masquerade as truth. 

The American Foundation for Equal Rights (AFER), the sole sponsor of the federal challenge to California's ban on marriage recognition, and Lambda Legal, the powerhouse of the gay rights movement that is fighting for gay equality in all fifty states, have known this for some time. As Ted Olson has said numerous times, Perry v. Brown "put fear and prejudice on trial" and exposed the arguments for denying gays access to the institution of marriage as flimsy, at best, disgusting, at worst. Lambda attorneys are fighting for marriage rights across the country, from New Jersey to Nevada and with each victory comes more than just an end to discrimination, but also notches up on the pro-gay marriage polling numbers. The loss in North Carolina provided neither.

It also should make us pause when some of our allies clamor for returns to the ballot box in California or Maine or New Jersey, even when the polls seem to be moving in our favor. The notion that North Carolina was somehow so threatened by gay people so in love that they want to marry is only slightly more offensive than the idea that the legitimacy of that love requires a popular vote. Consider the case of New Jersey Governor Chris Christie, who infamously seemed flummoxed by progressive opposition to a popular vote on gay marriage because, as he stated, if it goes to the ballot, he loses. That position is morally bankrupt as it assumes that only the result matters regardless of the offensive idea that he and his ilk have the power to grant us the honor of recognizing our marriages. Mr. Christie's immorality is no different than the basic immorality of anyone who would permit a popular vote on any human right as basic and fundamental as love.

Perhaps the most immediate lesson of Amendment One is much-needed political science reminder. Slim majorities of voters who support same-sex marriage rights for the first time are great for talking points, but the Amendment One fiasco shows us that national opinions, which can be skewed when aggregated, do little to protect us from a state political campaign waged with lies, vitriol, and hyperbole. Even if we had won and a majority of voters had rejected Amendment One, we would still be left with a state that bans bans gay marriage by statute and a Republican-dominated legislature with Tea Party and social conservative leanings. This was a quintessential defensive, rearguard action, one that we were forced to fight because North Carolinians elected anti-gay legislators.

That means that the absolute best we could have hoped for was that nothing awful would happen. But, something awful did happen. The Amendment was placed on the ballot after Republicans took over control of the state legislature after the 2010 elections, a position that party had not been in for 140 years! 

When we elect progressive politicians, like we did in 2006 and 2008, we can hope for and we can achieve a lot more. We can win passage of hate crime legislation. We can have a President who protects the rights of same-sex partners in hospitals, who refuses to defend discriminatory laws, who ends anti-gay discrimination in the military, and who argues for heightened scrutiny of anti-gay discrimination, to name just a few of President Obama's pro-gay accomplishments.

Had we elected Senator John McCain in 2008, or if we elect Mitt Romney this year, economic conservatives in the gay community may be happy, but from a civil rights perspective, the best we could hope for is that things don't get any worse. This is the opposite of an Obama-is-the-lesser-of-two-evils argument; in fact, the difference between playing offense and playing defense is like night and day, black and white, up and down. They are opposites, and when it comes to a choice between conservative politicians who may not want to talk about social issues for fear they might scare away independents and progressives who could be our civil rights allies, the latter is the only reasonable choice. So, the choice is clear: To keep fighting battles like the one over Amendment One in North Carolina, to keep playing a rearguard defense against our enemies, then vote for Mr. Romney. To keep fighting battles like the one over workplace protections for gays, to keep playing an vanguard offense in friendly territory, then vote for President Obama.

It is ironic that North Carolina's official motto -- esse quam videri (Latin for "to be, rather than to seem") -- comes from Cicero's essay, "On Friendship." Virtute enim ipsa non tam multi praediti esse quam videri volunt, he wrote. Or, "few are those who wish to be endowed with virtue rather than to seem so." The holier-than-thou attitudes of the majority of North Carolinians who voted for Amendment One, the State Republican legislative majority who sponsored it, and the misguided pastors who foamed at the mouth in support of it have led them astray from virtue. Yet we are the ones who are punished for it.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. North Carolina is the latest state to embrace bigotry and the put the reduction of rights for a minority into their state constitution. Just as the South did in the Jim Crow era, the majority of ignorant people made laws to oppress a minority they hated for a variety of very stupid reasons.

    That their is such ignorance and bigotry among the public is not new. What is new, in my opinion, is how politicians are just as ignorant as their constituents. When I worked in politics we took advantage of the voters stupidity but we didn’t succumb to it. Things are indeed different.

    We used to say, “the masses are asses” around the state Capitol building. Unfortunately, now, the Capitol is full of those same asses.

    There is also this awful religious aspect that in the name of God, marriage must be defined as between a man and a woman. My pastor recently declared the best thing organized religion has done in the last decade is push people away from church. I wholeheartedly agree. As a lifelong Christian, I’m embarrassed and offended by the things done in the name of God. I am very confident in both my Faith and that God is not present in the souls of those preaching to oppress any other child of God in any way.

    Just as the preachers preached segregation and George Wallace stood in the schoolhouse door and children threw rocks at black men swinging from trees in the deep south are now horrors from our past, so shall the things done to marginalize the LGBT community be seen when history looks back. Those on the wrong side will be ashamed and will have to atone.

    The bigger issue to me is the need for those that do embrace thought, education, science, and real Christianity to stand up and be louder than the noise of the thoughtless, uneducated, and fake Christians.

    Posted by: Charlie | May 9, 2012 12:08:51 PM


  2. Great article, Ari. But please address this: do the increasing frequency of these constitutional amendments do anything to further highlight that this is an issue for the Supreme Court -- that it is not a states' rights matter but properly federal.

    Posted by: Jack | May 9, 2012 12:16:07 PM


  3. A pity that Waldman would turn an excellent cautionary piece on seeking equality at the ballot box into shill propaganda for Barack Obama's re-election campaign. As the current fiasco over VP Biden's remarks prove, Obama is far from being a reliable ally! He will throw us under the bus whenever he finds it politically convenient to do so. Believe it or not, folks, equality is not a partisan issue: There are Republicans like Ted Olson who are solidly on our side, and there are Democrats like former presidential candidate Mike Dukakis, who are the worst homophobes you could ever want to meet.

    Posted by: Stuffed Animal | May 9, 2012 12:17:08 PM


  4. Well said

    Posted by: Jorge | May 9, 2012 12:25:34 PM


  5. Stop being a bunch of whiny wet-nappied crybabies. Obama, term two, and realize there's a solid plan for all of this. Sheesh.

    Posted by: Jay | May 9, 2012 12:27:41 PM


  6. Could we really have expected any other outcome from a southern state? I think not.

    Posted by: Peter | May 9, 2012 12:28:33 PM


  7. It's ironic that the Democratic National Convention is in North Carolina this year, given that more than 61% of that state's voters decided today to enshrine vicious bigotry in their constitution. I've seen people calling for the DNC to move out of NC, which isn't realistic or even possible this late in the game. What needs to happen is that Democrats need to stop dithering and make marriage equality a stated plank of the party platform. End of story.

    Posted by: MrRoboto | May 9, 2012 12:31:51 PM


  8. This measure passed even with the support of the Democratic political elite and double the money. Proof that you cannot spend and sparkle your way into new legislation. I know it makes Democrats mad when they don't get their way and when that happens the childish backlash is pretty bad. Double standards don't come from just the right.

    Posted by: Old Skooler | May 9, 2012 12:37:42 PM


  9. The alternative to a Democratic led government is a homophobic led government. No Republican leader can buck the rabid right religious nuts of this nation. As the article so correctly points out, here in North Carolina, if we hadn't put the rethug basturds in office in '10, we would not have amendment 1 voted on yesterday.

    Posted by: candideinncc | May 9, 2012 12:42:46 PM


  10. "The notion that North Carolina was somehow so threatened by gay people so in love that they want to marry is only slightly more offensive than the idea that the legitimacy of that love requires a popular vote."

    Great line. The simple fact is that this stuff should never be put to a popular vote. It's a matter of principle, not whether we think we will win or lose. It comes down to the way that our society and our Constitution will protect civil rights.

    Posted by: Rick | May 9, 2012 12:43:10 PM


  11. Why should we think that the results of a referendum in North Carolina--the only Southern state that hadn't already ratified a marriage amendment--have any important implications for attempts to achieve same-sex marriage through means other than litigation in states that aren't North Carolina and aren't in the South?

    Posted by: Fodolodo | May 9, 2012 12:43:31 PM


  12. Very well said ARI. Thank you, and any gay person against Obama is in effect a true homophobe.

    Posted by: UFFDA | May 9, 2012 12:45:08 PM


  13. Also: if it is on principle unacceptable to ask the public to vote on marriage equality, because it makes the worth of our relationships contingent on other people's approval, why is it any different to ask a court? Part of living in society is that we do not decide ourselves what rights we have. (It's pretty easy to see that this would be a disaster as a general principle of law.) That means that winning equality always requires persuasion, including, usually, persuading people who are wholly or partially in the grip of prejudice and ignorance. Which institutions are more susceptible to persuasion is a tactical question that may differ from place to place. It is not something that should be subject to categorical moral judgments.

    Posted by: Fodolodo | May 9, 2012 12:49:08 PM


  14. Hey Old Skooler, it also helps that NC's electorate is dumb as trash.

    Posted by: Polyboy | May 9, 2012 12:51:07 PM


  15. I guess towleroad only posts feedback they approve of. Guess you can't be angry and truely express how one feels..

    Posted by: Selective Posting | May 9, 2012 12:52:22 PM


  16. HORSE****! I will not vote for President Obama. I've been voting Democrat for 30 years on the lesser of two evils wagon. Horse****! No more! Gave time and money for the DNC. No more! The time was yesterday to support Marriage Equality. Black Democrats came out in NC and voted against us. President Obama is a constitutional scholar, who could have stood up as a beacon to inspire many toward equality. Never happened. Never heard anything from Jessie Jackson's office after Prop8 in CA. He took our money in the 90's now he's no help. So now I'm supposed to vote for President Obama when he has the jitters when asked about Marriage Equality. Says he's evolving - how lame. Even if he comes out at 1:30 today and says he's for Marriage Equality (which if he did you wouldn't understand anyways cause he'll go around in circles and talk like there's some scared secret to tell)- it's too late Mr. President.. The fatigue has set in. And now the DNC is going to reward the people of North Carolina with lots of money from the convention. Count me out.. No money and no time... Things would be much different today had we elected Hillary. She could have undone the wrongs of her husband. I'm staying home this election.. No more fear of the other side.. How could they really do anything worse than what some in Democratic Party have done?

    Posted by: Posting | May 9, 2012 12:54:09 PM


  17. Can't wait for the inevitable racial-oid arguments:

    "all black people are homophobic!"
    "a rich white gay guy was mean to me in a bar, so STFU!"
    "you owe us your vote!"
    "it's your fault for not participating in outreach!"

    Sigh.

    Posted by: Yeek | May 9, 2012 12:55:41 PM


  18. I think we all know that if "rights for blacks" were put to a vote in NC today every whitetrash redneck would get out and vote 'em back to Segregation or worse.

    Posted by: Jay | May 9, 2012 12:57:46 PM


  19. STUFFED ANIMAL

    What are you smoking?

    Posted by: Rowan | May 9, 2012 12:58:45 PM


  20. Perhaps I am wrong, but as I read the statistics online this morning there are far more registered Democrats than registered Republicans here in NC. If all the Democrats are on our side then I don't understand how the Prop passed? Among all registered voters, the key is to get a greater amount of people registered, educated and getting out to vote. Apathy seems to rule. I feel folks give lip service, but do not actually go vote. Being a Democrat is no guarantee you'll win on the gay marriage issue. Evidently, there are a lot of Democrats that don't believe in gay marriage, or domestic partnership. There were Republicans that did vote against it for sure, and some that voiced support. So the votes needed to win seem to be held among the Democrats that did not support the cause. Maybe I'm not understanding all the necessary analysis.

    Posted by: johnc | May 9, 2012 1:13:58 PM


  21. @Yeek

    Ditto. :)

    Posted by: Chitown Kev | May 9, 2012 1:19:38 PM


  22. Is there anyone as jaw-droppingly dumb as Ari? What kind of dullard looks at the returns from an off-election in southern state and draws from that conclusions about a general election in ME and CA?

    His lesson is that because we lost in NC - a Bible Belt state voting in a low=turnout, off-election - then we shouldn't seek "returns to the ballot box" in CA, NJ or ME.

    As an initial matter, no one is seeking a "return" to the ballot box in NJ. There was no first vote in NJ, so Ari's concern about "returning" to the ballot is so much nonsense. In any event, NJ is not a referendum state and no gay group advocated any special legislation to create a referendum. Ari is just making things up.

    Similarly, no major gay group supported a return to the ballot box in CA, because we are likely to win the litigation. More made-up nonsense from the towering intellect at Case Western.

    In ME, we are going back to the ballot. But that is the only way to get marriage equality in that state. Returning to the ballot means a chance of success, while not returning to the ballot means a guaranteed absence of equality. We lost by only 5.75% 3 years ago and that was in a conservative, lower turnout election. By my calculations, even if the exact same electorate showed up this year and assuming that no one had changed their minds, the margin would be halved simply as the result of the deaths of elderly 2009 voters in the intervening 3 years. And of course, people's minds have been changing and the youth turnout in 2012 will be much higher than in 2009. So on the basis of demographics alone, we have a very good chance of a win in ME. Thankfully, the folks in ME don't listen to Ari.

    Memo to Ari: Each state is different. See, e.g., any 5th grade social studies textbook.

    Posted by: Steven | May 9, 2012 1:22:46 PM


  23. By the way, what's going on with Perry v. Brown?

    Posted by: ZAMO88 | May 9, 2012 1:29:39 PM


  24. See the post at glbtq.com by Claude Summers. He says that Protect ALL NC Families ran the campaign based on a fatally flawed strategy that was itself duplicitous. Instead of using the referenda to tell North Carolina voters that same-sex marriage was good, they pretended the referendum was not about same-sex marriage. We certainly cannot win if we continue this flawed strategy, but if we honestly tell the truth in states like Maine, Minnesota, and Washington, we will win.

    Posted by: Jay | May 9, 2012 1:29:54 PM


  25. The passing of Amendment One in North Carolina, conveys a lynch mob mentality so prevalent in the South, just under its surface, lays a seething hatred of anything progressive or liberal, is it religious or just innate deep rooted inbred prejudice? I believe the former justifies the latter. North Carolina, once again as they did two centuries ago, has boxed itself into a social issue corner as was the case over slavery, integration, abortion, inter-racial marriage and now same-sex marriage. North Carolina has drawn a bolder line in the sand, by voting away human rights, without any forethought to the long term consequences, be they political or social. An American State has voted to alienate a minority group, based on an ill conceived theocratic ideology that the church can rule their conscience. I hope the people of North Carolina, who voted for Amendment One, feel proud that can vote away the inalienable rights of their fellow citizens, which evidently are guaranteed under the United Stated Constitution and then cavalierly cheer it on like winners of the Moral Super Bowl. It's not over North Carolina, the play-offs will be in a highter court.

    Remember this North Carolina, Gay people are not going away just because you have the power of the ballot box, the LGBT community has economic power and the ability to spend the 800 billion or so of US dollars we infuse into the American economy where we choose. Today as my part, I’m closing my Bank of America account, since their headquarters are in Charlotte.

    Posted by: ronsfo | May 9, 2012 1:34:48 PM


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