Amendment One redux: discrimination, exclusion and equality
By Mark Dorosin and Elizabeth Haddix
On May 8, North Carolina reached a historic but sadly familiar milestone with the passage of Amendment One: historic, because we have typically amended our constitution to expand and protect, not take away rights, and familiar, because until 1971, Article XIV, Section 8 of our state constitution established that “All marriages between a white person and a Negro, or between a white person and a person of Negro descent to the third generation, inclusive, are hereby forever prohibited.“
When Richard and Mildred Loving challenged Virginia’s prohibition on interracial marriage in the U.S. Supreme Court, North Carolina filed a “friend of the court” brief defending such racist marriage laws. Our attorney general referred to biology, anthropology and genetics as “so-called sciences” and insisted that the state has the absolute right to maintain “a policy of racial integrity.” Anticipating the modern backlash against civil rights, the brief argued that concluding otherwise would mean that minorities are entitled to “preferential constitutional privilege contrary to the judgment of the majority.”
The Supreme Court disagreed, ruling that such statutes violate the 14th Amendment of the U.S. Constitution. “[T]here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.” The court’s core holding bears repeating as discrimination has again been enshrined in our foundational document:
“Marriage is ‘one of the basic civil rights of man,’ fundamental to our very existence and survival. … To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”
The political philosopher Michal Walzer said that the primary good that we distribute to one another is membership in the human community. Evidence has shown that one of the biggest factors in eliminating homophobia and sexual-orientation prejudice is people’s experience meeting, knowing and interacting with gays and lesbians. Such interactions demonstrate the fundamental humanity of our gay and lesbian friends and neighbors, which in turn makes it harder to withhold or justify denying their full inclusion in the broader community.
At its core, Amendment One is designed to thwart this broadening of our human community and prop up the crumbling legacy of exclusion, and reflects that the only way to do that is divide, stigmatize and ultimately dehumanize the disfavored group. There is simply no other way to justify depriving our fellow citizens the full measure of equality, and no more fundamental element of that equality than personal and familial relationships. The racists that included the prohibition against interracial marriage in our state constitution knew this; the Nazis that drafted the Nuremberg Laws, the first section of which prohibited marriage between Jews and Germans, knew it too.
Amendment supporters insist their motivation was the historic and religious nature of marriage, and not homophobia or discrimination (they discount that North Carolina law already prohibits same-sex marriage). And while those who opposed the Amendment will continue to engage on this issue, it is also time to make its proponents defend their claims of non-discrimination.
The powerful organizing and energy dedicated to fighting Amendment One should now be channeled into a frontal attack on every aspect of sexual-orientation discrimination in our state, including employment, fair housing, parental rights and hate crimes. In each of these core aspects of our human community, intentional discrimination based on sexual orientation is not against the law in North Carolina.
Inspiration for this broader struggle can again be drawn from the Court’s opinion in Loving and its reminder that that there is “no legitimate overriding purpose” independent of invidious discrimination to justify denying gays and lesbians the equal protection of law.
It is past time that we fairly and broadly distribute our primary good – full legal and social inclusion – for the sake of our future as a whole human community.
Mark Dorosin and Elizabeth Haddix are attorneys with the UNC Center for Civil Rights.