In North Carolina, any two unrelated, unmarried individuals over the age of 18 may legally marry -- if they are of opposite sex at the time of the marriage. N.C.G.S. §§ 51.1, 51.2 and 51.3. Thus, on June 6, 1998, at Raleigh's Central Prison, a former prison nurse married Henry Louis Wallace, who is on death row for the murder of nine women in Charlotte. Mr. and Mrs. Wallace can meet each other only in a room where they are separated by steel bars and Plexiglas. But because Henry was a man and Rebecca was a woman, they obtained a valid marriage license.

If a man and woman enter into a valid marriage and afterwards one of them changes gender through genital surgery or hormonal alteration, they are still married. For this reason, there are a number of legally married same-sex couples in North Carolina; it's just that they were opposite sex when the Register of Deeds issued the marriage license.

The U. S. Constitution requires each state to give "full faith and credit" to the laws of every other state, and under the common law, marriages contracted in one jurisdiction are valid everywhere. Nevertheless, faced with the prospect of same-sex marriages in other states, in 1996 our legislature passed N.C.G.S. § 51-1.2, which purports to say that marriages between persons of the same gender are not valid in North Carolina.

North Carolina has routinely considered couples to be married for all purposes in North Carolina even if the marriage occurred in some other state. Many North Carolina residents get married in South Carolina -- so many, in fact, that North Carolina has one of the lowest rates of marriage in the United States. Traditionally, North Carolina authorities have upheld a South Carolina marriage even when there was a clear public policy reason to consider the marriage a sham. For example, men being investigated for "taking indecent liberties with a minor" have been known to drive the minor female across the border to Dillon, South Carolina (where female children as young as 14 can be married if only one of her parents signs the consent form). The marriage will put an end to all threat of prosecution for indecent liberties and similar charges.

In 1993 the Hawaii Supreme Court said that Hawaii's ban on same-sex marriages appears to violate the state constitution. The decision caused controversy, and Hawaii voters passed a constitutional amendment making it unlikely that Hawaii will allow same-sex marriages in the near future. In late 1999 the Supreme Court of Vermont ruled that Vermont's legislature had to find ways to give same-sex couples the same rights as married heterosexual couples. At this writing it seems likely that Vermont will either legalize same-sex marriage or adopt a marriage-like procedure that same-sex couples can use to give them the rights and privileges that come with marriage.

If Vermont or some other state allows same sex-marriage (or its "separate but equal" equivalent), there will undoubtedly be litigation to require North Carolina to treat such marriages or domestic partnerships as valid. Presumably, North Carolina courts in the 21st Century will eventually decide the issue of out-of-state same-sex marriages the same way the North Carolina courts of the late 19th Century decided the issue of out-of-state interracial marriages (at a time when North Carolina law prohibited marriages when the spouses were of a different race). That is, such marriages or domestic partnerships will require the state to give the participants all of the rights and privileges of marriage, if the couple actually lived in the other state when the marriage occurred and later moved to North Carolina.

If same-sex marriages are recognized, North Carolina gay and lesbian couples who have married in another state will suddenly be entitled to all of the "special privileges" that only heterosexual couples have had up until now.

For example, damages awarded as the result of a wrongful death must be distributed to the surviving spouse and blood relatives of the deceased, even when the deceased person had a will leaving property to someone else. See N.C.G.S. § 28A-18-2. This means that the gay man or lesbian whose lover is killed in an accident cannot recover anything on account of the lover's death.

Similarly, workers' compensation death benefits are routinely awarded to the widow or widower of someone who dies in a workplace accident. N.C.G.S. § 97-39 provides a possible avenue of relief if the surviving lover was "wholly dependent" on the deceased for support. However, we are aware of no cases in which a surviving lover made a claim for workers' compensation benefits.

Another "special privilege" of marriage is the right that spouses have to own real property as "tenants by the entirety." This means that all real estate owned jointly by two spouses is completely exempt from the claims of one spouse's creditors. Many North Carolinians who have been forced to file bankruptcy have kept substantial amounts of real estate because it was owned with a spouse. Unmarried couples cannot protect their homes and other real estate in this way. A provision of the North Carolina Constitution allows a married person to keep an unlimited amount of life insurance -- even if it has substantial cash value -- free and clear from the claims of creditors, if the beneficiary of the policy is the spouse of the insured. Unmarried persons who file bankruptcy or face judgments against them cannot save their life insurance in this way.

Likewise, unmarried couples are denied the unlimited exemption that allows a surviving spouse to inherit any amount of money or property without paying federal estate tax.