U.S. state constitutional amendments banning same-sex unions

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Many U.S. states had amendments to their state constitutions which prevented the recognition of some or all types of same-sex unions nearly all of these have since been ruled unconstitutional with rulings, appeals or trials. Some prevent a state from legalizing same-sex marriage, civil unions and domestic partnerships, while others ban only same-sex marriage.[1] Because these amendments are enacted at the constitutional level, they can only be changed by modifying the state constitution to which they were added. By May 2012, voters in 30 states had approved such amendments,[2][3] as of February 2015, only 13 remain in effect with 5 having federal district rulings deeming them unconstitutional that are stayed pending appeal.

Conservative activists who favor such amendments may refer to them as "defense of marriage amendments" or "marriage protection amendments." These state amendments are different from the proposed Federal Marriage Amendment, which would ban same-sex marriage in every U.S. state, and Section 2 of the Defense of Marriage Act, more commonly known as DOMA, which allows the states not to recognize same-sex marriages from other states.

History[edit]

The idea of extending marriage rights to same-sex couples did not become a political issue in the United States until the 1990s. During that decade, several Western European countries legalized civil unions, and in 1993 the Supreme Court of Hawaii ruled in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), that refusing to grant marriage licenses to same-sex couples was sex-discrimination under that state's constitution.[4] In response, voters passed Hawaii Constitutional Amendment 2.[5] This amendment differed from future marriage amendments in other states as it did not ban same-sex marriage itself, but merely empowered the state legislature to enact such a ban.[6] In November 1998, 69% of Hawaii voters approved the amendment, and the state legislature exercised its power to ban same-sex marriage.[6][7] Only three constitutional bans on same-sex unions (in Alaska, Nebraska, and Nevada) were proposed between 1998 and 2003.[8] All three amendments passed.[9][10][11] In Massachusetts Supreme Judicial Court's November 2003 decision in Goodridge v. Department of Public Health, the court legalized same-sex marriage in Massachusetts. Social and religious conservatives feared that their own state supreme courts would issue such rulings at some point in the future; in order to prevent this, they proposed additional constitutional bans on same-sex marriage.[12] The following year, eleven constitutional referenda banning same-sex unions were placed on state ballots.[13]

Purpose and motivation[edit]

Constitutional bans on same-sex unions were advocated in response to the legalization of same-sex marriage in other jurisdictions, notably Canada and Massachusetts.

Some amendments and some proposed amendments forbid a state from recognizing even non-marital civil unions and domestic partnerships, while others explicitly allow for same-sex unions that are not called "marriages".

Such amendments have two main purposes:

  • Preventing a state's courts interpreting their state's constitution to permit or require legalization of same-sex marriage.
  • Preventing a state's courts recognizing same-sex marriages that were legally performed in other jurisdictions.

Some proponents of such amendments feared that states will be forced to recognize same-sex marriages celebrated in other jurisdictions. They point to the full faith and credit clause, which requires each state to recognize the public acts, records, and judicial proceedings of each other state. On the other hand, opponents argue that state constitutional amendments will do nothing to resolve this perceived problem. Traditionally, courts have held that a state is free to decline to recognize a marriage celebrated elsewhere if the marriage violates the state's strong public policy. (§134 of the First Restatement of Conflicts, on Marriage and Legitimacy (1934)). That tradition was broken in 1967 with the Loving v Virginia cased decided by a unanimous Supreme Court and confirmed that the full faith and credit clause did require recognition of all legal marriages. If the supreme court rules similarly in their current cases, all state constitutional amendments would be trumped by the federal constitution due to the supremacy clause.

Conservative mobilization[edit]

State referenda on constitutional bans of same-sex unions have been used as a "get-out-the-vote" tactic by Republicans and social conservatives.[14][15] When voters see that a particular legislative initiative appears on the ballot, they are thought to feel more motivated to turn out to vote, enhancing ballot numbers for other candidates and issues of their party. The presence of these amendments on state ballots has been credited as providing a boost to Republicans in the 2004 election, and the 2004 Ohio amendment in particular has been cited as aiding President George W. Bush's reelection campaign by motivating evangelical social conservatives in the state to go to the polls.[14][16] President George W. Bush's close political consultant, Karl Rove, has been an enthusiastic proponent and organizer of legislation banning same-sex unions.

After the 2006 general elections some activists argued that such referenda were starting to lose their potential to mobilize conservative voters. Kevin Cathcart, director of Lambda Legal pointed to the narrow defeat of Arizona's Proposition 107, which would have rendered civil unions as well as same-sex marriage unconstitutional.[17] Nevertheless, that same election saw seven such amendments pass; these seven included an amendment in Virginia which banned civil unions as well as same-sex marriages.[18]

Litigation[edit]

Current lawsuits[edit]

The 2013 US Supreme Court rulings in United States v. Windsor and Hollingsworth v. Perry inspired a series of lawsuits in both federal and state court challenging bans on same-sex marriage in state constitutions.

Variants[edit]

Most of these amendments ban civil unions as well as same-sex marriage.[19]

Two marriage amendments differ greatly from all others: Hawaii's and Virginia's. The former gives the Hawaii state legislature the authority to ban same-sex marriages but does not explicitly make such unions unconstitutional. Virginia's amendment not only bans same-sex marriage and civil unions, but arguably renders any state recognition of private contracts entered into by unmarried couples unconstitutional.[20]

States that have voted on amendments[edit]

See List of U.S. state constitutional amendments banning same-sex unions by type for a more detailed list.
Current marriage amendments to US state constitutions, 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 constitutional amendments that are currently enforceable
The adoption of marriage amendments over time

The following table shows all popular vote results on state constitutional amendments banning same-sex marriage, or, in the case of Hawaii, granting the legislature authority to ban same-sex marriage. A "1" in the right column means the ban has already been overturned and same sex marriage is legal in the state. A "2" means the ban is overturned but an appeal is pending.

State Date Yes Yes vote No No vote Vote outcome
West:
Alaska 1998 68% (152,965) 32% (71,631) Yes Yes1
Hawaii 1998 71% (285,384) 29% (117,827) Yes Yes1
Nevada 2002 67% (337,183) 33% (164,555) Yes Yes1
Montana 2004 67% (295,070) 33% (148,263) Yes Yes1
Oregon 2004 57% (1,028,546) 43% (787,556) Yes Yes1
Utah 2004 66% (593,297) 34% (307,488) Yes Yes1
Arizona 2006 48% (574,332) 52% (607,769) No No1
Colorado 2006 56% (865,126) 44% (674,030) Yes Yes1
Idaho 2006 63% (282,301) 37% (163,408) Yes Yes1
Arizona 2008 56% (1,258,355) 44% (980,753) Yes Yes1
California 2008 52% (7,001,084) 48% (6,401,482) Yes Yes1
Midwest:
Nebraska 2000 70% (450,073) 30% (189,555) Yes Yes
Missouri 2004 71% (1,055,771) 29% (439,529) Yes Yes2
Michigan 2004 59% (2,698,077) 41% (1,904,319) Yes Yes2
North Dakota 2004 73% (223,572) 27% (81,716) Yes Yes
Ohio 2004 62% (3,329,335) 38% (2,065,462) Yes Yes2
Oklahoma 2004 76% (1,075,216) 24% (347,303) Yes Yes1
Kansas 2005 70% (414,106) 30% (178,018) Yes Yes1
South Dakota 2006 52% (172,242) 48% (160,173) Yes Yes2
Wisconsin 2006 59% (1,260,554) 41% (861,554) Yes Yes1
Minnesota 2012 47% (1,399,938) 53% (1,550,844) No No
South:
Louisiana 2004 78% (618,928) 22% (177,103) Yes Yes2
Arkansas 2004 75% (753,770) 25% (251,914) Yes Yes2
Georgia 2004 76% (2,454,912) 24% (768,703) Yes Yes
Kentucky 2004 75% (1,222,125) 25% (417,097) Yes Yes2
Mississippi 2004 86% (957,104) 14% (155,648) Yes Yes2
Texas 2005 76% (1,718,513) 24% (536,052) Yes Yes2
Alabama 2006 81% (734,746) 19% (170,399) Yes Yes1
South Carolina 2006 78% (825,766) 22% (232,978) Yes Yes1
Tennessee 2006 81% (1,419,434) 19% (327,536) Yes Yes2
Virginia 2006 57% (1,328,134) 43% (998,483) Yes Yes1
Florida 2008 62% (4,890,883) 38% (3,008,026) Yes Yes1
North Carolina 2012 61% (1,317,976) 39% (840,802) Yes Yes1

Notes:

  • 1 Found Unconstitutional, Amendment overturned, same sex marriage legal
  • 2 Found Unconstitutional (pending appeal).

See also[edit]

References[edit]

  1. ^ Virginia's amendment also bans private contracts that are marital in nature, while Hawaiʻi's amendment merely gives the state the power to ban same-sex marriage.
  2. ^ "Amendment One: How it changes North Carolina law". globalpost.com. Retrieved May 9, 2012. 
  3. ^ "A Contentious Debate: Same-Sex Marriage in the U.S.". Pew Forum. July 9, 2009. Retrieved February 5, 2012. 
  4. ^ "Special Report: 'I do'" Honolulu Star-Bulletin January 22, 1997
  5. ^ "Gay Marriage Timeline". Pew Forum. April 1, 2008. Retrieved February 5, 2012. 
  6. ^ a b "Homosexual (same-sex) marriages in Hawaii" Robinson, B.A. Religious Tolerance. 1997-JUL-11, updated 2001-DEC-2
  7. ^ "Same-sex marriage ballot measures: Hawaii gives legislature power to ban same-sex marriage" AllPolitics. CNN. November 3, 1998
  8. ^ In Alaska, a same-sex couple had sued for marriage rights, and had seen several rulings in their favor; the Alaska ban arose in an effort to prevent the ruling from taking effect. See "Homosexual (same-sex) marriage in Alaska" Robinson, B.A. Religioustolerance.org. 2002. (last update 2005-APR-21). accessed November 3, 2006.
  9. ^ "Same-sex marriage in Alaska". Religious Tolerance. Retrieved February 5, 2012. 
  10. ^ Jody Brown and Bill Fancher, AgapePress (May 15, 2005). "Family Advocates: Judicial Activism Runs Amok in Nebraska - Jody Brown and Bill Fancher". Crosswalk. Retrieved February 5, 2012. 
  11. ^ Vogel, Ed (February 23, 2011). "Legal challenge to Nevada's anti-gay marriage amendment not expected". Las Vegas Review-Journal. 
  12. ^ Masci, David (April 10, 2008). "An Overview of the Same-Sex Marriage Debate - Pew Research Center". Pew Research. Retrieved February 5, 2012. 
  13. ^ "Election 2004 - Ballot Measures". CNN. April 13, 1970. Retrieved February 5, 2012. 
  14. ^ a b Andrea Stone, Drives to ban gay adoption heat up in 16 states, USA Today, February 20, 2006
  15. ^ Pauline J. Chang, Wisconsin Conservatives Gear Up For Marriage Vote with 'Celebration', The Christian Post, October 25, 2006
  16. ^ Joe Hanel, Elite donors fuel ballot initiatives, The Durango Herald, October 29, 2006
  17. ^ "Ban on Same-Sex Unions Added to Va. Constitution". The Washington Post. November 8, 2006. Retrieved February 5, 2012. 
  18. ^ "Ban on Same-Sex Unions Added to Va. Constitution", by Chris L. Jenkins, The Washington Post, November 8, 2006
  19. ^ "Marriage Measure Is an Amendment Too Far", by David Boaz, Cato Institute, November 3, 2006. property rights text of va ballot question no. 1