Exile on Jones Street: Amendment Done: The short, twisted life of a constitutional crisis

by Kirk Ross

Writing this as the blowback is just beginning over the Fourth Circuit’s ruling striking down Virginia’s ant-gay marriage law and North Carolina Attorney General Roy Cooper’s subsequent, well reasoned surrender to the inevitable.

After the ruling, which states pretty clearly that people are people, Cooper spent about nine minutes announcing his intention not defend the state’s official policy on marriage. The ruling does not directly apply to North Carolina, but we’re in Fourth Circuit country, and it’s just a matter of time. There are four cases in federal courts challenging the North Carolina amendment.

Two things that Cooper said jump out. The first was early on when he said that the issue likely won’t be settled until the Supreme Court either rules itself or refuses to hear an appeal. The other thing Cooper said came at the very end of his last comment, just before he said good-bye and thanked everyone.

“The ruling today doesn’t mean that valid [same-sex] marriages can occur in North Carolina, yet.”

Yet.

So, here comes the blowback, which could include pissing away a sizable amount in legal fees hiring outside attorneys to go through whatever motion the opposition is willing to pay for. Anticipating this and a few other lawsuits that the Democratic attorney general may lack enthusiasm pursuing, last year the General Assembly leadership granted itself the authority to hire lawyers and mount a legal defense on its own.

We’re also due for another round of skirmishes in the culture war that drove the amendment in the first place.

While we brace ourselves for that, it might be instructive to remember how we got here and why.

The anti-gay marriage amendment didn’t just spring forth after the GOP took over the legislature in 2010.

Its author, the late Sen. Jim Forrester (R-Iredell), introduced a bill calling for an amendment several times prior. Others had introduced similar ideas.

Each of those attempts never made it out of committee. Most never even got assigned to one. The Democratic leadership refused to allow them to come to the floor in part because they knew that if the bills ever reached that point they might very well pass with the help of socially conservative Democrats or at least those in districts where a no vote might be a career-ending move.

Once the legislature flipped, Forrester and his allies got the green light.[pullquote]The anti-gay marriage amendment didn’t just spring forth after the GOP took over the legislature in 2010.[/pullquote]

The other big driver for “Amendment One” was rallying the conservative base, or, as one legislator put it during a candid moment, gearing up the GOP’s 2012 ground game.

What’s interesting about that angle is that by the time North Carolina got around to a referendum, the national momentum was starting to reverse. Opposition to the amendments was getting better organized and more and more younger and minority voters saw gay marriage as a civil-rights issue.

In most states the referendums had been held in the fall to help increase social conservative turnout, but as the calculus shifted so did the strategy in North Carolina. To make sure it both helped the GOP ground game and actually passed, the referendum was moved to the May 2012 primary, where the hotly contested races, especially the presidential primary, were mostly Republican.

With the deck thusly stacked and a Democratic party generally in shambles, the marriage amendment passed with overwhelming support, taking 62 percent of the vote. Turnout was 32 percent, less than half of what it would be that fall.

It’s moot now, but given the rising opposition by businesses, clergy and GOP moderates like former Charlotte Mayor Richard Vinroot, if groups like Equality NC and others had had another five months to organize they might have beat the thing.

They didn’t and we’re left with a sorry episode in which about 20 percent of the electorate temporarily inserted hate and discrimination into the state constitution.

Let’s not do that again, Okay?