By RAY KOLLS
Article I, Section 1 of the North Carolina Constitution is entitled “The equality and rights of persons” and provides:
We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.
Section 6 of Article XIV of the North Carolina Constitution is entitled “Marriage” and sets forth our State’s ban on gay marriage:
Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.
Under our state constitution, gay North Carolinians who seek to marry their partners are not “equal,” to other North Carolinians; do not enjoy the same “liberty” as other North Carolinians and do not have the same ability to engage in the “pursuit of happiness” as their fellow North Carolinians.
This contrast between a promise of equality to all and the denial of it to gay North Carolinians is a monstrous contradiction. The gay marriage ban makes a lie of the promise of equality in our state constitution. The question for North Carolinians now is whether we wish to swelter any longer in the heat of this injustice. We should not and Article XIV, Section 6 of our Constitution must be repealed.
On the national level, the public mind has turned on the issue of gay marriage. The great mass of our fellow citizens now recognize that marriage is an institution that should be extended to gay couples. Twelve states and the District of Columbia have recognized the right of gay marriage for their citizens. They are leading on this issue.
These states recognize that their gay citizens share the same fundamental desire as straight citizens to affirm their solemn commitments to each other and to do so publicly before their families and communities. These states recognize that it is an injustice to deny this right in equal measure to gay and straight citizens alike. These states recognize that gay citizens seeking to marry are at least as deserving of the legal recognition of their status as straight citizens. These states have had the courage to acknowledge the essential dignity of these marriages as equal to other marriages recognized under law.
Why can’t we?
North Carolina’s ban on gay marriage is a species of discrimination and divisiveness that will soon be tolerated only in morally backward areas of our Nation. Defenders of this sort of inequality claim that they are merely defending traditional morality and that to do so is a traditional function of government. This is true as far as it goes.
Yet the real question is what kind of traditional morality can long stand which is based on an injustice that the public mind has come to recognize as such? North Carolina has an opportunity to lead on this issue. We should seize that opportunity. We should do so because, if we do not, our State will be bypassed by the developing moral and legal consensus of the country.
In this regard, consider the Supreme Court’s recent decision on the constitutionality of the Defense of Marriage Act. In that case, the court found that DOMA, a federal statute, is unconstitutional to the extent it fails to accord equal treatment to marriages between straight and gay couples in states where both marriages are lawful. In other words, in states where both gay and straight marriages are lawful, the federal government can no longer treat those marriages unequally. Many expect that the rationale in the DOMA case will provide the basis for a finding – should a suitable case come before the Supreme Court – that state laws banning gay marriage are unconstitutional because they infringe on a fundamental liberty of American citizens. While it is not entirely clear which way the court will rule, a lawsuit challenging Pennsylvania’s ban on gay marriage has recently been filed and many more are expected.
Such a lawsuit will soon be filed in North Carolina; indeed there are plans to amend an existing lawsuit to assert these very claims. Not only is there an argument that North Carolina’s constitutional gay marriage ban violates the U.S. Constitution, it is plainly inconsistent with the guarantee of equality extended to all North Carolinians in our own state constitution. North Carolina cannot have it both ways. Our constitution cannot expressly extend equality to all persons and then, in the next breath, deny equality in marriage to citizens who are gay.
This contradiction in our state constitution cannot withstand moral scrutiny. It will not long withstand legal scrutiny. We should do now what we know is right. We should do it as citizens before a court tells us to do it. North Carolina should repeal its constitutional ban on gay marriage.
Ray Kolls is a Davidson resident. He was trained as a lawyer and now is a partner in an international consulting firm.