A bill challenging marriage equality in the N.C. House could overturn it nationwide

Four years after the U.S. Supreme Court’s Obergefell v. Hodges decision made gay marriage legal across the United States, some members of the General Assembly are trying to reverse the policy.

House Bill 65, the Marriage Amendment Reaffirmation Act, seeks to nullify the Supreme Court’s decision in North Carolina and challenge its constitutionality nationwide. Primary sponsors N.C. Rep. Larry Pittman, R-District 83; Mark Brody, R-District 55; and Keith Kidwell, R-District 79, define any marriage that is not between a man and a woman as a “parody marriage” and opposed to the "nature of the human species."

“Like last year, it still is true that marriage equality is the law of the land, not only in North Carolina but in the entire nation, no matter what, to be frank, half-baked legal theories these anti-LGBTQ+ lawmakers try to put forward,” said Molly Rivera, an N.C. ACLU communications associate.

HB 65 comes in the wake of another, similar piece of legislation from the General Assembly’s 2017-2018 session, House Bill 780. While they both would make gay marriage illegal again in North Carolina, their methods were different.

HB 780’s case for overturning the decision was that, according to the sponsors, several of whom are now sponsoring HB 65, the court was trying to exceed the authority of God. 

Meanwhile, HB 65 contends that the passage of marriage equality is establishing “Secular Humanism” as a state religion, violating the Establishment Clause in the First Amendment. 

The basis for this argument comes from a footnote listing Secular Humanism as a religion in the Supreme Court’s Torcaso v. Watkins decision in 1961, where the Court ruled that states can not force government workers to swear to a belief in God.

“It's so preposterous that it hardly makes any sense, the argument itself,” said Kendra Johnson, the executive director of Equality NC. “... The references of same sex-marriage or any other marriage that is not between one man and one woman being ‘parody marriages’ is so outrageous that it's hard to even take this bill seriously.”

Kidwell, a primary sponsor of the HB 65, declined to comment, while Brody and Pittman did not respond to requests for comment by the time of publication.

HB65 is not an isolated piece of legislation, Johnson said, with other states reacting in a similar way to benefits afforded by the Supreme Court decision.

The Kansas Legislature put forward a bill around the same time as HB 65 utilizing the same “parody marriage” wording, and the Tennessee Legislature submitted a bill to “defend natural marriage.”

“These types of measures, typically, in 2019, don't have tremendous support, but that remains to be seen,” Johnson said. “I'm optimistic that we have enough fair-minded legislators that this won't advance, and if it does advance, by any chance, that it would be vetoed by the governor.”

After it was filed, HB 65 was referred to the House’s Committee On Rules, Calendar and Operations of the House, the same place where HB 780 died two years ago. Johnson suggested these bills are not intended to actually pass the House, but are instead a publicity opportunity for their sponsoring representatives.

Though she does not expect the legislation to pass, Rivera did not rule out a lawsuit against HB 65, reminiscent of the N.C. ACLU’s 2016 lawsuit after the passage of House Bill 2, the law that allowed discrimination based on gender identity in public buildings.

“We have seen some changes in the last year, but they do have a bad track record in the LGBTQ+ rights space,” Rivera said. “... Unfortunately, we are no longer shocked when these types of bills come out of our state legislature, but we remain committed to working hard to protect and hopefully expand the rights of LGBTQ+ people and their families.”

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