Amendment One: Unconstitutional, But Probably Here To Stay

One of the state's most highly contested constitutional amendments officially became part of history's scrap heap as of Friday. So what happens to the controversial Amendment One now that the U.S. Supreme Court has allowed same-sex marriage in all 50 states?

The amendment reads in part: Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.

Voters overwhelmingly approved the measure in 2012. As it turns out, its life-span was relatively short. It was effectively ruled unconstitutional by a federal court in October, and any hope that the Supreme Court would bail it out ended with Friday's decision.

Jeffrey Welty is an associate professor of public law and government at UNC's School of Government. He says the language will stay on the books even though it is no longer enforceable.

"It doesn't automatically strike the words out of the state constitution. They'll stay there as kind of a vestigial organ," he says.

So the amendment is to state law what an appendix is like in the human body – it's there but not really doing anything. And it's not the only one on the state's books like that.

For example, the state constitution disqualifies candidates for office if they deny the being of an Almighty God. Welty says that too probably wouldn't survive a legal challenge.

"That may not be enforceable even now if somebody were to challenge it, but it's in there until somebody takes it out," he says.

There's also a state statute that bans flag burning, even though the Supreme Court ruled 25 years ago that flag-burning is protected under the First Amendment. But good luck finding a lawmaker who wants to remove that language.

Because Amendment One was voter-approved change to the state constitution, it's likely there to stay. To remove it would also require voter approval. And to even do that would take a bill from state legislators calling for a referendum to remove the language restricting marriage to one man and one woman. And that's not likely to happen anytime soon.