Tuesday, May 10, 2005

North Carolina Cohabitation Law Should be Settled in Legislature, Not Courts

North Carolina’s 200-year old law forbidding co-habitation is probably on its way out the door, AP reports. That’s right, in North Carolina, it is illegal for an unmarried man and woman to live together.

Now, the ACLU is suing to get the law declared unconstitutional on the behalf of a former sheriff’s dispatcher who was forced to quit her job because she lived with her boyfriend. There’s no way a law this ridiculous gets upheld. But we have to ask, why on earth can’t the North Carolina government abolish the law themselves?

There are at least 144,000 unmarried couples living together in North Carolina. Can’t 288,000 people, their friends and families put enough pressure on the state government to change the law? This isn’t racial segregation in the 1950s. This is the common and generally accepted practice of cohabitation of adults in the new millennium. You can’t tell me that anywhere near a majority of North Carolina residents think this is a good law.

Going through the courts means opponents of the law are absolved from having to do the hard, democratic work of organizing and affecting change. But it also means that those who support the law don’t have to come out and expose themselves as the intrusive, freedom-restricting fools that they are.

Make no doubt, this is a bad law that is certainly unconstitutional. It’s not that the ACLU is wrong for stepping in, it’s that, once again, debate is being moved out of the public square and into the courtroom. Why should North Carolina legislatures be allowed off the hook? This is their responsibility. The people of North Carolina should demand they take care of it.


At 12:41 PM, Anonymous Stephen C. said...

If,as you say, the law is "clearly unconstitutional," then under our system of government (at least since Marbury v. Madison), it is precisely the courts where this debate (i.e. the law's constitutionality, not its wisdom) SHOULD take place.

In theory at least by finding a law unconsitutional, the court does not pass judgment on the wisom of its policy. We all know that some judges are better than others at making that distinction. As a lawyer, however, I shudder at the possibility of removing from the judiciary the right and responsibility of passing judgment on a law's constitutionality. Over our history, the court's role in striking down laws has ebbed and flowed; the current supreme court does not strike down too many laws on the basis of that law's interferrence with individual liberties (recent cases concerning sodomy and the execution of juveniles notwithstanding), at least in comparison with the Warren Court. However, perhaps ironically, this supreme court strikes down a lot of federal legislation on the basis of state sovereign immunity. It has also revealed a more restrictive understanding of the commerce clause's grant of authority to the federal government than any court since the New Deal. I happen not to agree with these new trends, but I prefer to attack them on the merits, not by saying that they are "judicial activists" or that they are removing the laws from public debate.

At 12:51 PM, Anonymous Anonymous said...

This is a bad argument. Our entire country is based on laws. The first step to any change in our society is deciding if it's legal. The ACLU called the deputy and offered their services. The ACLU wants to protect all people and insure our country follows the constitution. The deputy wants the monetary power to make sure she wins. This is the ACLU at it's best. Intervening on behalf of a citizen facing an unconstitutional law. This would end the law quickly with as little cost as possible. To suggest that instead people should rise in the streets and have the government write a new law to repeal an old law is ridiculous. To start with I'm sure the vast majority of people don't know it's illegal to live together. To generate enough ground swell to get state legislators to act will take time and money. To draft a new law will take time and money. to get it passed and ratified would take time and money. This is not the courts making a political decision. This is the courts doing what they are supposed to do.

At 1:05 PM, Blogger Alan Stewart Carl said...

Obviously the courts have the right to review the case, but that's not the point. The point is that this problem can be fixed without having to litigate it. Just because something can be decided by the courts doesn't always mean it should be decided by the courts. By taking this decision out of the hands of elected officials, they are absolved from having to make a decision or even taking a stand. It's not a crisis, so shouldn't the people of North Carolina at least try to get their government to correct this wrong before turning to the courts? I mean, if I were a resident of the state, I'd really like to know if my elected officials are so backwards and intrusive as to support a law this stupid. But by taking it to the courts first, the government is freed from accountability.

I think our courts should not be the first stop whenever we have a conflict. Problems should first be addressed in the public sphere and, if no resolution is available, then litigating is acceptable. We rely too much on our courts to solve our problems for us—both on a governmental and personal level. It's not so-called judicial activism that I oppose. What I oppose is the impulse to litigate rather than first trying to work out problems through debate and action.

At 1:12 PM, Anonymous Anonymous said...

This is the problem with America. This stupid country has separation of powers and checks and balances. When you want to remove a law you have to go to a court and argue it to a judge. You can't just tear it up and throw it away. I agree with the GOP lets get rid of the courts, change all the laws and call the President "Emperor" instead.
You make the same argument that people do when they have a video tape of a man killing someone and a signed confession. Why should they get a trial?

At 1:15 PM, Blogger Alan Stewart Carl said...

Also, "most cost effective" does not always mean "best." Democracy is not supposed to be “quick” or function at “as little cost as possible.” Do you really think many of the landmark civil rights cases would have still succeeded if they had not been accompanied by the hard, tireless work of activists petitioning their government and going door-to-door to change minds? Courts should be a complement to and not a surrogate for public action and governmental decision making.

At 1:29 PM, Blogger Alan Stewart Carl said...

One more thought...all of you commenting are making the mistake of assuming that because I am not making a liberal arguement I must therefor be making a conservative one. There are more than two sides to any issue.

I support the courts. I am a card-carrying member of the ACLU. But I don't like our present culture's over-reliance on the courts to make our decisions for us. I do not think litigation should be the first reaction to every conflict. There are other ways to affect change. That's my arguement. So, please, don't lump me in with those who seek to destroy our courts.

At 1:56 PM, Anonymous Anonymous said...

First the reason the civil rights happened was because the supreme court ruled segregation was unconstitutional after a lawsuit was brought to court. The rising up in the streets was correct and necessary but in the end it was the Law that won. Thats when the southern Democrats left the party and formed the Dixiecrats. When Strom Thurmond lost his bid for president they joined the Republican party and fought for "States rights". Right now in America we have people working to make homosexual marriage illegal. Explain how that is constitutional? The Government facilitates a legal agreement between two adults. It doesn't make sure they are of the same religion, or race. Why does the government care what sex they are? The populous is denying rights from a minority. We need someone to challenge this in court so they can protect personal freedoms of a minority. This is the purpose of our legal system. Suing because you spilled coffee on yourself is something different.

At 2:32 PM, Blogger Alan Stewart Carl said...

The problem with thinking the courts are the only avenue for change is that, in its essence, you're arguing that the people are too stupid or at least too bigoted to govern themselves. Shouldn't we be interested in changing not just the law but people's minds too? What's wrong with saying that we should rely on more than just the courts?

I agree that court cases were vital in the civil rights movement. But they were only part of it and they were no more important than the marches, the speeches, the elections, the debates.

The civil rights movement was such a thorough and complete victory precisely because it relied on far more than just the courts. I would suggest, if homosexual marriage is that important to you, you do more than just sue.

At 3:31 PM, Blogger Joe Weedon said...

The point is -- or should be -- that the NC law is archaic and should be repealed. As the state legislature enacted the law they should be the body that acts to repeal it -- rather than passing the buck and waiting for the courts to act.

Our nation's court systems are overburdened b/c lawsuits like this that work their way through the courts. I'd rather see the legislature step up to DO ITS OWN JOB and repeal the provision.

In short, we need to hold our state legislatures accountable for making sound laws or repealing unsound laws.

At 9:34 PM, Blogger BobsAdvice said...

It is all fine and well to make the state legislature responsible.

But they are the ones who wrote the laws in the first place.

And fortunately, as Stephen C. pointed out, when they are unconstitutional, the courts are empowered to deal with it. That is what is meant by "judicial review".

I guess I suspect that this is a much more important law than it appears at first glance. It would make sense to make cohabitation illegal everywhere if you are on the Religious Right. Then you can outlaw gay marriage, as well as civil unions, as many states have done, and then go ahead and arrest homosexuals.

This is what many in America would like to see happen.


At 9:58 PM, Anonymous Anonymous said...

Once again, fundamentalist, right-wing Christians would like to run your lives. But oh, the studies show....The studies also show that evolution is the most logical explanation for human origin, but that doesn't stop millions of Americans from basing their entire belief system in a book written thousands of years ago. It isn't the government's, or these Bible thumpers', business how you live your life. The state is not your moral authority. Gimme a break

At 11:27 AM, Anonymous Anonymous said...

I don't think the argument that we need to hold the state legislators to task in this case is really fair. First they weren't responsible for this law. Living in MA people often laugh at all the "blue laws" still on the books. Often there are more pressing issues than repealing laws that are obviously ridiculous and never enforced. I can't blame them for not repealing a law they most likely didn't know was on the books.

Regarding the civil rights comparison I think the courts were the most important part of the entire movement. If the courts had not found segregation to be illegal then the movement would have died away.

The homosexual marriage issue fits perfectly. A very vocal group of people with a lot of political sway are determined to deny rights to a minority. They want to deny survivorship rights, hospital visits etc. for no other reason other than they don't agree with their lifestyle. This, in my opinion, violates the constitution. The legislature is going to follow the will of the people, the courts should follow the constitution and provide a balance.


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