Why Government ‘Domestic Partner’ Benefits are now illegal in NC
Bill James, Mecklenburg County Board of Commissioners
After I won the GOP primary Tuesday night I pointed out that Mecklenburg County will be required to change our current ‘Domestic Partner’ employee policies because of Amendment One.
Instead of responding individually, I decided to outline why Amendment One has altered the landscape regarding Government Benefits (which as a County Commissioner I am responsible for). The debate has occurred and the Amendment passed.
Now we must implement the will of 61% of the voters of North Carolina (even if the other 39% don’t like it).
Back in 2009, the Mecklenburg County Commission had a debate over offering ‘domestic partner’ benefits to homosexuals. The Board at that time voted along party lines (5 Democrats in favor and 4 Republicans opposed) to offer that benefit. At the time, numerous government attorneys indicated that offering the benefit was illegal (especially if the actual conjugal ‘marriage’ relationship was disclosed).
Why? Because NC law classifies homosexual behavior (acts) as a criminal act. Now some will tell you that ‘Lawrence V Texas’ overturned this law (NCGS 14-177). This is untrue. Lawrence overturned enforcement of the law for acts in ‘private’. It did not overturn the law which is alive and well in North Carolina’s General Statutes.
This will be news to you in New York City and San Francisco. This ‘Crimes Against Nature Law’ (CAN) is used to make arrests (250 or so in Charlotte a year). Not all behavior is created equal under the law and this is the case in 31 States across the US. People can prattle on about ‘civil rights’ till the cows come home but not all behavior is equal and the law has never supported what liberals are trying to sell (without much luck I might add).
NC also makes it against the law for opposite sex couples to ‘cohabitate’ together. Since homosexuals living together were not viewed as ‘cohabitating’ under NC law (it never occurred to them in 1805) liberals created a new legal fiction using Domestic Partner ‘agreements’. This law about cohabitating is the reason why Mecklenburg only offers Domestic Partner benefits to homosexuals and not to unmarried heterosexuals.
In other words, the Democrats on the Mecklenburg County Commission ‘discriminated’ against unmarried heterosexuals living together.
Since any agreement could not encourage ‘breaking the law’ most Domestic Partner policies are written in code. The agreements are what I call the ‘Felix and Oscar’ agreements. To avoid mentioning illegal acts or the original NC marriage law passed over a decade ago by Democrats; liberal governments that offer these benefits go to great lengths to ignore the reality of these relationships and turn them into roommates with a wink and nod. There is a whole legal cottage industry around developing these agreements while ignoring NC law.
If Felix shares an apartment with Oscar and both are on the lease along with some other documents, the taxpayers will subsidize health coverage though NC law says there is no ‘spouse’ – but only if it is Felix and Oscar and not Felix and Mary. Of course, an enterprising ‘straight’ Felix could recruit an opportunistic ‘Oscar’ and set up medical benefits at the County because the rules are so lax (and have to be to avoid breaking NC law).
In North Carolina we have a constitutional provision that says that the only things local governments can domust be specifically authorized. This is from a paper by UNC and posted on the ACLU’s web site (it was used as justification that passing Amendment One would end GOVERNMENT domestic partner agreements):
North Carolina Const. art. VII, § 1 states that “The General Assembly . . . may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.” N.C. CONST. art. VII, § 1. This provision reserves the State the power to grant particular municipalities certain authority. Accordingly, North Carolina municipalitiesdo not have the authority to act when they have not been granted authority by the General Assembly.
In other words, if the State doesn’t say local government can do it – local government can’t do it. You might be wondering how these various liberal enclaves got around that in adopting existing Domestic Partner health benefits. Well, they just ignored it and counted on no one suing. Specifically they cited NCGS 160A-162(a) and NCGS 153A-92(a) that give local government the power to “fix or approve the schedule of pay, expense allowances and other compensation for all city employees…,” and “purchase life, health, and any other forms of insurance for the benefit of all or any class of city employees and their dependents, and may provide other fringe benefits for city employees”.
They cite these even though there is no mention of ‘Domestic Partner’ benefits in these laws (or any state law) and the legislature did not provide them with direct authority to do so.
Though numerous legal eagles said it was illegal for government to offer Domestic Partner benefits – politics on these liberal boards got the best of them and they were pressured to offer taxpayer benefits using a contrived ‘Felix and Oscar’ agreement.
These ‘agreements’ were drawn to ignore and lie about illicit cohabitation. This contrived manipulation of the truth is one reason liberalism is killing America.
Now we turn to Amendment One. One of the issues that liberal elected officials in NC relied on was that State law didn’t forbid other sorts of ‘civil unions’. Now we have forbid them – in Amendment One. The ONLY domestic civil union in this State (marriage) is now the law of the land (or will be on January 1st).
Since Amendment One (as the liberals noted before the vote) says that marriage is the ONLY ‘domestic civil union’ allowed by the State, it closed the loophole liberal local governments have used to try and claim they weren’t breaking NC law. They have lost their fig leaf and they know this which is why they are howling.
While private contracts are allowed and Bank of America can offer benefits as long as their shareholders agree, the position of the State (and therefore ALL local and county governments) is clear. No government in North Carolina can offer a benefit that mimics marriage (one man to one woman) or ‘recognizes’ any’domestic civil union’ other than marriage. You can’t offer what you can’t ‘recognize’.
This Report from UNC’s liberal legal professors said it best:
In the public sector, seven local governments within North Carolina currently offer domestic partner benefits to their employees. The Town of Carrboro, Town of Chapel Hill, City of Durham, and County of Orange offer benefits to both same-sex and opposite-sex domestic partners. The County of Durham, City of Greensboro, and County of Mecklenburg offer benefits to same-sex domestic partners. At present, the North Carolina General Statutes authorizes these localities to extend benefits to their employees’ domestic partners. The proposed Amendment, however, would likely strip these local governments of that authority.
…….In this view, judicial enforcement would amount to “recognition” of a “domestic legal union,” which the Amendment forbids.
I and many others disagree that NC General Statutes ‘authorizes these localities’ to offer these benefits buteven if that is true the UNC report is correct that Amendment ONE eliminates that right for GOVERNMENTworkers.
For a local government to offer ‘Domestic Partner’ benefits now it would first have to ‘recognize’ that ‘Domestic Partners’ exist which under Amendment ONE is verboten.
Locally, the County Manager is having people study the matter. The City Manager, under pressure from liberal groups, says he is going to proceed with breaking the law and offer these benefits anyway.
All of this is liberal stagecraft to break the news to various groups slowly over time as Amendment One is implemented. Government Domestic Partner benefits are history.
There are lots of laws I don’t like but the solution to a law you don’t like is to get the legislature to change the law not to break the law. When 61% of the voters of North Carolina say ‘yes’ to something – do you think elected judges are going to say ‘no’? Even when the Democrats were in charge in Raleigh the CAN laws never got repealed because even Democrats in NC wouldn’t vote to de-criminalize the behavior. Ironic for those that think the Democrats taking over Raleigh would help them out. Even more ironic considering the DNC is coming to a state that still has the CAN laws on its books.
A bigger issue for me however is that those elected to office are required to uphold the law and the NC Constitution, even if they disagree with it. I suspect that Democrats are going to ignore that (as they did before) and try and find a sympathetic judge to side with them.
This is why politicians involved in public office have to stand up and not wilt because someone calls you a name or accuses you of being something you are not. If you are in public office you have a legal and moral obligation to defend the people of North Carolina on Amendment One, or risk violating your oath of office.
As for the name-calling by the left; just ignore it.
Which brings me to my final point; something that is illegal and banned can’t be viewed as a ‘civil right’ but a ‘moral wrong’ (not matter what area it involves – adoption, employment or foster parenting).