Tuesday, February 21, 2012


Written for the Asheville Buncombe County League of Women Voters Newsletter February 2012.

At the primary election May 8 voters will approve or reject a proposed amendment to the constitution of North Carolina: 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.

If approved, the proposed measure would add a new section 6 to Article 14 of the North Carolina Constitution, “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

All societies seek to regulate sexual behavior by social norms or laws. Some sexual behavior is forbidden by law; some is encouraged by laws about marriage. These laws vary. Social rules about marriage in the 6th century BCE and since are most easily found in the Hebrew Bible books of Exodus, Leviticus, and Deuteronomy. In the early 13th century social changes assigned the church a major social role in marriage. Couples usually married in the bride’s parish church after an announcement of intention, the Banns, were read in church the three weeks prior. The parish minister officiated and registered the marriage. A license to marry in some other church or without publication of Banns could be issued by the bishop’s court after a fee was paid. That practice continues in England and was the rule in colonial America. The bishops’ courts also had jurisdiction over probate of wills.

            But in America there were few ministers and no bishops’ courts. The royal governors under the royal ecclesiastical prerogative issued the licenses and collected the fees. The licenses authorized ministers or justices of the peace to officiate at marriages. Marriage license and probate fees were income to governors that was not controlled by colonial legislatures. Colonial governors opposed Anglican church efforts to have a bishop sent to America.

            Much of continental Europe is influenced by the French Revolution and the Napoleonic Code and requires marriage by a civil official. A religious ceremony may follow.

            After the American Revolution state governments began to require a state license and state registration of all marriages, with the marriage license addressed to ministers and others authorized by state law to officiate.  State license regulations also forbade some marriages on grounds of age, relationship, and sometimes race.

            On June 12, 1967 in a unanimous decision the United States Supreme Court in Loving v. Virginia ruled that states could not forbid marriage on grounds of race. The court wrote, “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 Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
            Some states explicitly allow marriage between persons of the same sex. In others including North Carolina such marriage is forbidden either by statute or by the constitution. Voters will decide May 9 whether to amend the state constitution or not.