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

Three Lessons from North Carolina's Amendment One


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.


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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  1. "Is there anyone as jaw-droppingly dumb as Ari?"

    Yep, me. Because I was stupid enough to read the rest of your comment when it began with that "jaw droppingly dumb" first sentence you wrote.

    The thing you learn about coming to Towleroad is NOT to read certain threads or conversations. Any topic where race is the obvious topic a sane visitor to this blog should stay away from. I've been trying to be sane in that way, but every once in a while I'll start reading the comments on a topic that shouldn't involve race and here it comes up anyway. Then I say, "Dammit...the ofay b.tches got me again."

    POSTING said, "How could they really do anything worse than what some in Democratic Party have done?"

    OK, now the above also answers STEVEN'S opening question in his comment.

    Andy Towle still has a fine blog for news coverage affecting Gay people, but there are still some "jaw-droppingly dumb" b.tches up in here.

    Posted by: Derrick from Philly | May 9, 2012 1:40:12 PM

  2. @Posting--No more fear of the other side.. How could they really do anything worse than what some in Democratic Party have done?

    How about any of the following:
    1. Packing the Supreme Court with conservatives that keep gay rights unconstitutional for the next 40 plus years.
    2. Overturning the repeal of DADT.
    3. Continued defense of the provisions of DOMA.
    4. Initiating and passage of a constitutional amendment to forever forbid marriage equality and to dissolve all present marriage equality unions.

    Stay home and ask yourself if things could be worse under a Republican. Is that really a question to which you can not figure out the answer?

    Posted by: vanndean | May 9, 2012 1:43:59 PM

  3. ......if you're not going to vote for President Obama is that because you'd prefer a Republican president, who's already stated he'd support a full-on federal ban on LGBT Marriage Equality, or are you simply cutting off your nose to spite your face?

    Just wondering.

    Now, as per NC Amendment One - can we expect or anticipate a Prop8-fallout style court case or two, thus leading to eventual equality?

    Posted by: LittleKiwi | May 9, 2012 1:48:30 PM

  4. Were blinded by fear. Not suggesting to vote Rupublican. They are more evil. But instead of voting Democrat, the lesser of two evils, you could pick a third and stay home. If you leave fear and stick to facts, then look up "Defense of Marriage act" in wikipedia. You'll see that it was Democratic President Clinton that signed it into law. Justices that were appointed by conservatives like Justice Tauro that are reversing it. Prop 8 - Walker appointed by conservative. Supreme Justice Kennedy - Romer case - by a conservative. I will no longer live in fear. If the DNC doesn't pick up Marriage Equality then I will stay home.

    Posted by: Fear | May 9, 2012 2:09:37 PM

  5. Posting - Your post is a perfect example of cutting of your nose to spite your face. I believe it is both irrational and politically naive, as is demonstrated by the question with which you conclude ("How could they really do anything worse than what some in Democratic Party have done?")

    The answer to that is obvious. To take just one concrete example, DADT has been repealed. Do you think there is any chance that would have happened under a Republican administration? Looking forward, even though Obama may not be moving as far and as fast as we might like, he is not actively working against us, nor is he encouraging others to do so. Even if Romney does not adhere to the NOM pledge he signed (and, since he cannot be trusted to adhere to anything he has said, let's assume he will not), do you think he would do anything to advance gay rights, or prevent the rollback of the gains we have made? Do you think he would appoint Supreme Court justices who would be sympathetic to our cause? Would Romney do anything to prevent a Republican Congress from reinstating DADT? Would he have his DOJ vigorously defend DOMA?

    Either Romney or Obama will be the next President. Failure to support Obama, even if begrudgingly, effectively makes it more likely that Romney will become President. There can be no doubt that the consequences of a Romney presidency (especially if, heaven forbid, the Republicans were to gain control of the Senate and hold the House)would be far worse for the gay community than a second Obama term.

    If your idea is that withholding gay support is going to teach the Democratic party a lesson, and make it more likely that they will be more supportive of gay rights in the future, it is a lesson that comes at far too high a cost. The damage that could be done by a Romney presidency and Republican Congress would not be capable of being undone in the next election cycle. Please try to overcome the righteous indignation and recognize the practical consequences of a failure to vote Obama. Could you live with two more Scalias or Alitos on the Supreme Court for another 25 years?

    Posted by: MiloTock | May 9, 2012 2:20:17 PM

  6. @Steven: Ari is dumb? Ad hominem attacks are quite immature.

    Moreover, there are some lessons to be learned from NC. You are simply wrong to write it off as another Bible Belt state. It has a fairly moderate voting history, and more registered Democrats than Republicans. You are also flat-out wrong in your assertion that voter turnout was low. At 34%, it was significantly higher than the turnout for the previous primary. It helped that Democrats and Republicans both had contested offices on the primary ballot, as the voters represented a broader cross-section of the electorate.

    If you disagree with Ari's points, or even the premise of the article, try constructing an argument with real facts, rather than resorting to juvenile name-calling.

    Posted by: Rick | May 9, 2012 2:25:01 PM

  7. "[T]he only way forward for recognizing the true equality of gay persons is through litigation . . . ."

    Ari, please recall that litigation failed to achieve marriage equality in New York, Washington, and New Jersey, where the highest courts in those states all declined to hold that there was a state constitutional right to same-sex marriage.

    More importantly, why are you willing to concede anything to the homophobes? In order to have a successful movement we need to win at the courts, the legislatures, the executive branch, AND at the ballot box. And which has a bigger impact on every day people -- a bunch of appellate judges writing lengthy opinions or a months long campaign where people see images of same-sex couples and their families talking about why marriage matters to them? I'll take the latter over the former any day.

    Posted by: Brian | May 9, 2012 2:28:30 PM

  8. "fear" - why does my Canadian @ss understand the circumstances that led to DOMA more than yours?

    You "staying home" is useless and makes you look like an idiot. "I'm not getting what I want so I'm going to let Romney win and then say I couldn't do anything about it."

    get over your own ego.

    Posted by: LittleKiwi | May 9, 2012 2:31:08 PM

  9. When cornered by an animal, with a wall behind you and an aggressive thing in front, do you play dead? Or do you fight?

    Posted by: X | May 9, 2012 2:40:16 PM

  10. I find this analysis really short-sighted and ahistorical. The Civil Rights movement didn't rely upon litigation solely and did not focus on getting liberal politicians elected or re-elected. They used non-violent civil disobedience, voter registration, mass marches, etc. They were far ahead of elected officials. They built up a base of support within their communities. Based upon your analysis, Martin Luther King should have worked on LBJ's re-election committee and brought court cases against the State of Alabama and Miss, instead of organizing bus boycotts and mass marches.

    The Supreme Court is essentially a conservative institution and the LGBT community, at least in California, is putting all of it's eggs in one basket. If the court case is lost, then we will need to go back to the ballot box. There will be no other way to get Prop 8 repealed. And the LGBT community have failed to build up a community of grassroots activists who could have help build a grassroots movement to stop Amendment One in NC.

    Instead, we continue to rely upon litigation, lawyers, and national, so-called advocacy groups to do our fighting for us.

    Instead of debating whether to work to re-elect Obama or not, we should focus on our principles and let the politicians follow and bend to pressure exerted by a strong, grassroots movement. The Civil Rights movement didn't spend all their time worrying about whether Kennedy or LBJ would be relected. They lived their principles and took action.

    Posted by: David Comfort | May 9, 2012 2:46:26 PM

  11. If I were American, I would be embarrassed by this nonsense. What kind of people vote this way? Is there an education problem in NC?

    Posted by: rwbcanada | May 9, 2012 2:48:46 PM

  12. Anyone who has been in the south knows why it was ridiculous even to hope that NC would vote down this odious amendment.
    I've been there many times, in the cities and towns where the 'real' southerners live, and it's HORRIBLE! Everything there is run through the churches. And the churches and their "pastors" are some of the most manipulative and stagnating influences on earth! Just abyssmal. Everyone knows everyone else's business. And there is such gossip about people... typically about how're they're out of step with the Lord. It's a place of great social stagnation. If you're a white, heterosexual, educated male, then you might like it, because absolutely everything is run according to the white, straight male's social heirarchy --a heirarchy where they are first and they make the rules.

    Posted by: Dan Cobb | May 9, 2012 2:50:26 PM

  13. Lots of lengthy comments here. Glad I'm not the only one full of piss and vinegar.

    As far as the disaster in NC, expect more of this. I head through the pipeline that our fierce advocate, Pres. Obama, may come out today in support of same-sex marriage.

    I also heard that wealthy republicon extremists are now going to try and push for a 50-state, submit-the-vote-to-the-people movement to have each state vote on an amendment banning same-sex marriage and enshrining in state constitutions that marriage between one man and one woman is the only legally-sanctioned, legally-recognized union allowed.

    Madam Gallagher has already (along with several other right-wingers) gone on shout radio and con-TV to declare that "when the people get to vote directly on whether marriage shall be legally-defined as between one man and one woman, the people always vote for marriage as God has defined it". That is a direct quote.

    I guess I may just have to start exercising my Second Amendment rights.

    Posted by: jamal49 | May 9, 2012 2:51:48 PM

  14. Why is asking the courts for equality better than asking the entire voting population? Because judges are much less likely to be uneducated, poor, rural, fundamentalist, ignorant assholes. That's why. People with those characteristics are much more likely to be homophobic Christianist morons.

    Posted by: KD | May 9, 2012 3:29:21 PM

  15. Great comments here.

    Ari's view that gay marriage will be decided by litigation comes natural to him ... he's a lawyer. Wish I had as much faith in this Supreme Court as he does.

    Gay marriage is the focal point but the bigger picture is that it is actually a civil rights issue and Amendment One in North Carolina pointed this out really well. The legal challenge needs to be made that you can not allow popular vote to determine a minority groups civil rights.

    A non vote for Obama is in essence a yes vote for Romney who has stated that he will seek a US constitutional ban on gay marriage as well as seek a repeal of DADT.
    While there are conservatives who recognize the importance of gay civil rights Romney is not one of them. Every LGBT person needs to think long and hard about that.

    Posted by: JONES | May 9, 2012 3:34:55 PM

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

    I didn't know the DNC was handing out crack pipes to its stooges, too.

    Posted by: Gil | May 9, 2012 3:40:23 PM

  17. I find it utterly appalling that in the US civil rights are the subject of a popular vote.

    In other developed nations, this is an abhorrent (and illegal) idea.

    Posted by: SteveC | May 9, 2012 6:15:52 PM

  18. As a North was a sad day for us. Republicans have been trying to get this on the ballot for over 10 years. This past election period, they got the majority in the house pushing through this terrible amendment to go on the ballot. All of us in NC don't believe in this amendment. The county by county ballots were released and our big cities that have the large populations voted against this (Raleigh, Durham, Chapel Hill, Charlotte, Ashville). All though it passed, the LGBT community and its friends are not giving up on the rights of all people. We will continue to fight and we will persevere. Just because we are a southern state doesn't mean we are not progressive.

    Posted by: Lance | May 9, 2012 9:23:08 PM

  19. @Rick:

    I stand by my characterization of Ari. As for NC, it is a Bible-belt state. Yes, it has centers of moderation, but that is why it came in at 61% rather than the 70+% of other southern states. It's electorate is not remotely comparable to those in the 4 other states that are voting on this issue this year or that may vote on this in the future. It is beyond ridiculous to compare blue states in the northeast and on the West Coast with NC.

    As for NC itself, the turnout was low compared to a November election. It may have been higher than some other May election, but that is irrelevant since Ari was saying that we should draw lessons from NC's May election and apply them to November 2012 ballot fights. Again, a dumb argument by a dumb man.

    You had nothing to say about anything else in my comment, i.e., how there is no return to the ballot in NJ or CA, thus making Ari's point nonsensical, or how ME is fundamentally different from NC. I doubt Ari will have anything to say about that either, but his silence would be the first inkling of intelligence.

    Posted by: Steven | May 9, 2012 11:55:47 PM

  20. Actually, isn't "fear and prejudice on trial" Boies's line?

    Posted by: Randy | May 10, 2012 12:11:50 AM

  21. It's sad. If the time, hard work, energy and money spent trying to defeat this amendment had been spent in 2010 keeping the GOP from taking over Both Houses of the state Legislature, this probably never would have made the ballot. (Dems had blocked it from getting on the ballot for well over a decade prior.) We keep thinking these off-year elections aren't important, but they are!

    Posted by: robert | May 10, 2012 8:41:17 AM

  22. Dan Cobb's remarks are sooo true, its same here in Fl,especially if you go 4 miles inward of either coast... fundie-baptist churches on EVERY corner,ignorance,and bigotry,and little 'education' rule...

    Posted by: codyj | May 10, 2012 5:43:54 PM

  23. The North Carolina fiasco can be viewed in many ways. (1) National LGBT leaders and organizations did lend complete support to activists on the ground thus handicapping the campaign against amendment 1. (2) Over 6M registered voters did not vote as was expected since the Republicans set it up this way to avoid a true popular vote and (3) in progressive urban centers in North Carolina such as Charlotee, Raliegh-Durham, the vote against amendment one was something like 7 to 1 against. We need to develop lot better political strategies and use our ecomonic strength and pressure to bare on those states that deny equality.

    Posted by: RK | May 11, 2012 12:13:33 PM

  24. Very well said Ari. You mentioned an important distinction between offense in friendly territory, and defense in hostile territory.
    North Carolina is a bastion of fear, ignorance, and hatred. The state represents some of the worst aspects of the republican party that can be found across the nation, including in Mitt Romney.

    Posted by: anonny6 | May 11, 2012 2:57:55 PM

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