List of U.S. state constitutional amendments banning same-sex unions by type

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Current U.S. state constitutional amendments banning legal recognition of same-sex unions, by type
  Constitutional amendment bans same-sex marriage, civil unions, and any marriage-like contract between unmarried persons
  Constitutional amendment bans same-sex marriage and civil unions
  Constitutional amendment bans same-sex marriage
  No U.S. state constitutional amendment banning legal recognition of same-sex unions
The adoption of U.S. state constitutional amendments banning legal recognition of same-sex unions over time

There are several different types of state constitutional amendments banning legal recognition of same-sex unions in U.S. state constitutions, referred to by proponents as defense of marriage amendments.[1] The amendments define marriage as a union between one man and one woman and prevent civil unions or same-sex marriages from being legalized, though some of the amendments bar only the latter. As of January 2014, Massachusetts, Connecticut, Iowa, Vermont, New York, New Hampshire, Maine, Maryland, Washington, California, Delaware, Rhode Island, Minnesota, New Jersey, Hawaii, New Mexico, and Illinois allow same-sex marriage. The District of Columbia also allows same-sex marriages.

Thirty-one U.S. state constitutional amendments banning legal recognition of same-sex unions have been adopted. Of these, nine make only same-sex marriage unconstitutional; seventeen make both same-sex marriage and civil unions unconstitutional; two make same-sex marriage, civil unions, and other contracts unconstitutional; two have been found unconstitutional; and one is unique. Hawaii's amendment is unique in that it does not make same-sex marriage unconstitutional; rather, it allows the state to limit marriage to opposite-sex couples. Virginia's amendment prevents the state from recognizing private contracts that "approximate" marriage. Observers have pointed out that such language encompasses private contracts and medical directives.[2][3] Furthermore, the Michigan Supreme Court has held that the state's amendment bans not only same-sex marriage and civil unions, but also domestic partnership benefits such as health insurance.[4] California Proposition 8 was declared unconstitutional by Vaughn R. Walker, chief judge of the United States District Court for the Northern District of California, on August 4, 2010, in Perry v. Schwarzenegger, and following an appeal to the Supreme Court of the United States California ceased to enforce the amendment in June 2013.[5][6] Utah Constitutional Amendment 3 was declared unconstitutional by Judge Robert J. Shelby of the United States District Court for the District of Utah on December 20, 2013, in Kitchen v. Herbert.[7] Nebraska Initiative Measure 416 was declared unconstitutional by Joseph F. Bataillon, district judge on the United States District Court for the District of Nebraska, in November, 2005 in Citizens for Equal Protection v. Bruning, but his ruling was reversed on appeal by the United States Court of Appeals for the Eighth Circuit, which ruled that "laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States."[8]

This list only covers bans of civil unions, private contracts between same-sex couples and same-sex marriage in state constitutions; state statutes are not listed. The text of these amendments sometimes runs several paragraphs. In this event, excerpts of the most important phrases or sentences are included in this list.

State constitutional amendments are typically approved first by the legislature or special constitutional convention and then by the voters in a referendum. [a] In some states, one or both of these steps is repeated.[b] The percentages shown in the list are results from the referendum stage, not the legislative stage.

Amendments that ban same-sex marriage[edit]

Type I constitutional ban on same-sex unions US.svg
State Year Support vote % Title Amendment (in relevant part)
Alaska 1998 68%[11] Ballot Measure 2, Joint Resolution 42[11] To be valid or recognized in this State, a marriage may exist only between one man and one woman.[12]
Nevada 2000, 2002[b] 69.6%; 67.1%[b] Nevada Question No. 2[10] Only a marriage between a male and female person shall be recognized and given effect in this state.[13]
Mississippi 2004 86%[14] Mississippi Amendment 1[14] Marriage may take place and may be valid under the laws of this state only between a man and a woman.[15]
Missouri 2004 72%[16] Constitutional Amendment 2[17] To be valid and recognized in this state, a marriage shall exist only between a man and a woman.[18]
Montana 2004 67%[14] Montana Initiative 96[14] Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.[19]
Oregon 2004 57%[14] Oregon Ballot Measure 36[20] Only a marriage between one man and one woman shall be valid or legally recognized as a marriage.[21]
Colorado 2006 56%[22] Colorado Amendment 43[23] Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.[23]
Tennessee 2006 81%[22] Tennessee Amendment 1[24] The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state.[24]
Arizona 2008 56%[25] Arizona Proposition 102[26] Only a union of one man and one woman shall be valid or recognized as a marriage in this state.[26]

Amendments that ban same-sex marriage and civil unions, but not other contracts[edit]

Type II constitutional ban on same-sex unions US.svg
State Year Support vote % Title Amendment (in relevant part)
Nebraska 2000 70%[27] Initiative Measure 416[27] Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.[28]
Arkansas 2004 75%[14] Constitutional Amendment 3[29] (1) Marriage consists only of the union of one man and one woman. (2) Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas.[30]
Georgia 2004 76%[14] Constitutional Amendment 1[31] (a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state. (b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage.[32]
Kentucky 2004 75%[14] Constitutional Amendment 1[33] Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.[34]
Louisiana 2004 78%[14] Constitutional Amendment 1[35] Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.[36]
North Dakota 2004 73%[14] North Dakota Constitutional Measure 1[37] Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.[38]
Ohio 2004 62%[14] State Issue 1[39] Only a union between one man and one woman may be a marriage valid in or recognized by this state. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.[40]
Kansas 2005 70%[41] Proposed Amendment 1[42] (a) Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void. (b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.[43]
Alabama 2006 81%[44] Sanctity of Marriage Amendment (Amendment 774)[45] No marriage license shall be issued in the State of Alabama to parties of the same sex...

A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage.[45]

Idaho 2006 63%[22] Idaho Amendment 2[22] A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.[46]
South Carolina[c] 2006 78%[22] South Carolina Amendment 1[22] A marriage between one man and one woman is the only lawful domestic union that shall be valid or recognized in this State. This State...shall not recognize...any other domestic union, however denominated.[47]
South Dakota 2006 52%[22] South Dakota Amendment C[22] Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota.[48]
Wisconsin 2006 59%[22] Wisconsin Referendum 1[22] Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.[49]
Florida 2008 62%[25] Florida Amendment 2[50] Inasmuch as marriage is the legal union of one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.[50]
North Carolina 2012 61%[51] North Carolina Amendment 1 Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.[52]

Amendments ruled unconstitutional or pending appeal[edit]

Former constitutional bans on same-sex unions.svg
State Year Support vote % Title Amendment Fate
California 2008 52%[25] California Proposition 8[53] Only marriage between a man and a woman is valid or recognized in California.[53] Ruled unconstitutional in Hollingsworth v. Perry.
Utah 2004 66%[14] Constitutional Amendment 3[54] Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.[55] Ruled unconstitutional on December 20, 2013. Pending appeal to the Tenth Circuit.
Oklahoma 2004 76%[14] State Question 711[56] A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.[57] Ruled unconstitutional on January 14, 2014. Pending appeal to the Tenth Circuit.
Virginia 2006 57%[58] Marshall-Newman Amendment[58] That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.[59] Ruled unconstitutional on February 13, 2014. Pending appeal to the Fourth Circuit.
Texas 2005 76% Proposition 2 (A) Marriage in this state shall consist only of the union of one man and one woman. (B) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage. Ruled unconstitutional on February 26, 2014. Pending appeal to the Fifth Circuit.
Michigan 2004 59%[14] State Proposal - 04-2[60] To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.[4][61] Ruled unconstitutional on March 21, 2014. Pending appeal to the Sixth Circuit.

Failed amendments[edit]

  • Arizona Proposition 107 - On November 7, 2006, Arizona rejected a constitutional amendment banning same-sex marriage and civil unions by 52% of the vote. Two years later Arizona voters approved a more narrow amendment banning only same-sex marriage.
  • Minnesota Amendment 1 - On November 6, 2012, Minnesota rejected a constitutional amendment banning gay marriage with 53% of the electorate opposed. A majority of all votes cast would be required to amend the state constitution.

Notes[edit]

  1. ^ The mechanics differ: 17 states allow constitutional amendments to be proposed by popular initiative, all allow the legislature to start the process, and five allow special conventions to start the process. In all states, though, the amendment is approved by elected members of a constitutional convention or elected legislators at least once, with varying standards for approval of the measure. Voters then vote directly on the resulting referendum, except in Delaware, where constitutional amendments are voted on and ratified only by the state legislature.[9]
  2. ^ a b c Amendments to the Nevada state constitution must be approved by the voters in two consecutive elections.[10]
  3. ^ South Carolina's Amendment explicitly disavows a Virginia-type regime that would affect private contracts: "This section shall not prohibit or limit parties, other than the State or its political subdivisions, from entering into contracts or other legal instruments."[47]

References[edit]

  1. ^ Walden, Michael; Thoms, Peg, eds. (2007). Battleground: business 2. Greenwood Publishing Group. p. 468. ISBN 978-0-313-34065-9. 
  2. ^ Freehling, Bill (November 21, 2006). "Test case is urged by ACLU". The Free Lance-Star. Retrieved December 15, 2006. 
  3. ^ Glidden, Melissa; Jackson-Cooper, Brenda; Nickel, Leslie (August 11, 2006). "Potential Impact of the Proposed Marshall/Newman Amendment to the Virginia Constitution" (PDF). Arnold & Porter, LLP. Retrieved December 15, 2006. [dead link]
  4. ^ a b National Pride At Work, Inc. et al. v. Governor of Michigan et al., 748 N.W.2d 524 (Mich 2008).
  5. ^ Conant, Eve (August 4, 2010). "Prop 8 Ruling Is Just the Beginning". Newsweek. Retrieved August 5, 2010. 
  6. ^ Dolan, Maura (June 28, 2013). "Prop 8: Gay marriages can resume in California, court rules". Los Angeles Times. Retrieved June 28, 2013. 
  7. ^ Derek Kitchen v. Gary R. Herbert (D. Utah December 20, 2013). Text
  8. ^ Citizens for Equal Protection v. Bruning, F.3d 859 (8th Cir 2006).
  9. ^ Lutz, Donald S. (June 1994). "Toward a Theory of Constitutional Amendment". American Political Science Review 88 (2): 355–370. Page 360. Table 3. Covers State Constitutions active from 1970–9.  (subscription required)
  10. ^ a b "Gay rights ballot initiatives". Gaydemographics.org. Retrieved November 30, 2006. [dead link]
  11. ^ a b Robinson, B.A. "Homosexual (same-sex) marriages in Alaska". Ontario Consultants on Religious Tolerance. Retrieved November 30, 2006. 
  12. ^ "Section 1.25: Marriage". Alaska State Constitution. Alaska Legislature. Retrieved November 30, 2006. 
  13. ^ "Article 1, Sec: 21: Limitation on recognition of marriage". Constitution of the State of Nevada. Nevada Legislature.  Unknown parameter |accessdaddte= ignored (help)
  14. ^ a b c d e f g h i j k l m n "Election 2004: Ballot Measures". CNN. Retrieved November 30, 2006. 
  15. ^ "Mississippi". DOMAwatch.org. Alliance Defense Fund. 2006. Retrieved December 14, 2006. [dead link]
  16. ^ Cooperman, Alan (August 5, 2004). "Gay Marriage Ban in Mo. May Resonate Nationwide". Washington Post. Retrieved December 14, 2006. "Missouri's Amendment was the first such referendum voted on since same-sex marriage was legalized in Massachusetts." 
  17. ^ "Elections: 2004 Ballot Measures". Missouri Secretary of State. 
  18. ^ "Article I, Bill of Rights, Section 33". Missouri Constitution. Missouri General Assembly. Retrieved December 14, 2006. 
  19. ^ "Article XIII: General Provisions, Section 7: Marriage". Montana Constitution. Montana Legislature. Retrieved December 12, 2012. 
  20. ^ "Measure 36". Oregon Voter's Guide. Oregon Secretary of State. 2004. Retrieved December 14, 2006. 
  21. ^ "Article XV (Miscellaneous) Section 5a". Constitution of the State of Oregon. Oregon Legislature. Retrieved December 14, 2006. 
  22. ^ a b c d e f g h i j "Election 2006: Ballot Measures ". CNN. Retrieved December 14, 2006. 
  23. ^ a b "Analysis of the 2006 Ballot Proposals" (PDF). Research Publication No. 554. Legislative Council of the Colorado General Assembly. p. 13. Retrieved December 14, 2006. 
  24. ^ a b "Constitutional Amendment Issues" (PDF). Tennessee Secretary of State. Retrieved December 14, 2006. [dead link]
  25. ^ a b c "Election 2008: Ballot Measures ". CNN. Retrieved November 10, 2008. 
  26. ^ a b Brewer, Jan (September 2008). "2008 Ballot Proposition Guide". Arizona Secretary of State. Retrieved November 11, 2008. 
  27. ^ a b "Statewide General Election 2000 Results, Constitutional Amendments and Initiative Measures" (PDF). Nebraska Secretary of State. pp. 21–22. Retrieved December 17, 2006. 
  28. ^ "Article I, section 29". Nebraska State Constitution. Nebraska Legislative Documents Legislature. Retrieved December 15, 2006. [dead link]
  29. ^ "Arkansas Initiatives & Amendments, 1938–2004" (PDF). Arkansas Secretary of State. p. 20. Retrieved December 18, 2006. [dead link]
  30. ^ "83rd Amendment" (PDF). Arkansas State Constitution. Arkansas Legislature. Retrieved December 18, 2006. [dead link]
  31. ^ "Official Results of the November 2, 2004 General Election". Georgia Secretary of State. Retrieved December 18, 2006. 
  32. ^ "Article I, section IV" (PDF). Constitution of the State of Georgia. Georgia Secretary of State. Retrieved December 18, 2006. 
  33. ^ "2004 Election Night Tally Results". Kentucky State Board of Elections. Retrieved December 18, 2006. [dead link]
  34. ^ "Section 233A". Kentucky Constitution. Kentucky Legislature. Retrieved December 18, 2006. 
  35. ^ "Results for Election Date: 9/18/04". Louisiana Secretary of State. Retrieved December 19, 2006. [dead link]
  36. ^ "Article 12, section 15". Louisiana Constitution. Louisiana State Senate. Retrieved December 19, 2006. 
  37. ^ "Election Results, 2004 General Election". Election Management System. North Dakota Secretary of State. Retrieved December 20, 2006. 
  38. ^ "Article XI, section 28" (PDF). North Dakota Constitution. Retrieved December 20, 2006. 
  39. ^ "Official Ballot Language". Ohio Secretary of State. Retrieved December 21, 2006. [dead link]
  40. ^ "Article XV, section 11". Ohio Constitution. Retrieved December 21, 2006. 
  41. ^ "Election Statistics". Kansas Secretary of State. Retrieved December 22, 2006. 
  42. ^ Rothschild, Scott (February 3, 2005). "Gay marriage ban in public's hands". Lawrence Journal-World. Retrieved December 22, 2006. [dead link]
  43. ^ "Article XV, section 16". Kansas Constitution. Retrieved December 22, 2006. 
  44. ^ "Alabama". DOMAwatch.org. Alliance Defense Fund. 2006. Retrieved January 6, 2007. [dead link]
  45. ^ a b "Amendment 774 Ratified". Alabama State Legislature. Retrieved January 6, 2006. 
  46. ^ "Article III, Section 28". Idaho Constitution. Idaho State Legislature. Retrieved January 6, 2007. [dead link]
  47. ^ a b "A Joint Resolution to Propose an Amendment to Article XVII of the Constitution of South Carolina, 1895, Relating to Miscellaneous Matters, by Adding Section 15, so as to Provide that a Marriage of One Man and One Woman Is the Only Lawful Domestic Union that Shall Be Valid or Recognized in This State" (PDF). Journal of the Senate of the State of South Carolina (State of South Carolina) (54): 24. April 2005. Archived from the original on October 3, 2008. Retrieved January 6, 2007. 
  48. ^ "House Joint Resolution 1001" (PDF). South Dakota Legislature. 2005. Retrieved January 6, 2007. 
  49. ^ "Wisconsin". DOMAwatch.org. Alliance Defense Fund. 2006. Retrieved January 6, 2007. [dead link]
  50. ^ a b Division of Elections. "Initiative Information: Florida Marriage Protection Amendment" (PDF). Florida Department of State. Retrieved November 11, 2008. 
  51. ^ Waggoner, Martha (May 8, 2012). "NC approves amendment on gay marriage". Google News. Associated Press. Retrieved May 8, 2012. [dead link]
  52. ^ "Session Law 2011-409, Senate Bill 514" (PDF). North Carolina General Assembly. 2011. Retrieved May 8, 2012. 
  53. ^ a b "Text of Proposed Laws" (PDF). California Secretary of State. p. 128. Retrieved November 10, 2008. [dead link]
  54. ^ "Utah 2004 canvass amendments" (PDF). 2004 General Election Results. State of Utah Elections Office. Retrieved December 15, 2006. [dead link]
  55. ^ "Article I, section 29". Utah State Constitution. Utah Legislature. Retrieved December 15, 2006. [dead link]
  56. ^ "General Election, November 2, 2004, Summary Results". Oklahoma State Election Board. Retrieved December 22, 2006. [dead link]
  57. ^ "Article II, section 35". Oklahoma Constitution. domawatch.org. Retrieved December 22, 2006. [dead link]
  58. ^ a b "Official Results, 2006 election". Virginia State Board of Elections. Retrieved December 30, 2006. [dead link]
  59. ^ "Proposed Constitutional Amendment, Article I, Section 15-A" (PDF). November 2006 Proposed Amendments. Virginia State Board of Elections. Retrieved December 30, 2006. [dead link]
  60. ^ "2004 General Election Results". Michigan Department of State. Retrieved December 19, 2006. 
  61. ^ "Article I, section 25". Michigan State Constitution. Michigan Legislature. Retrieved December 19, 2006. 

External links[edit]