U.S. state constitutional amendments banning same-sex unions
Many U.S. states have amendments to their state constitutions which prevent the recognition of some or all types of same-sex unions. Some prevent a state from legalizing same-sex marriage, civil unions and domestic partnerships, while others ban only same-sex marriage. Because these amendments are enacted at the constitutional level, they can only be changed by modifying the state constitution to which they were added. As of May 2012, voters in 30 states had approved such amendments; this total does not include Hawaii's amendment.
Conservative activists who favor such amendments may refer to them as "defense of marriage amendments" or "marriage protection amendments." Titles vary among states; for example, Alabama's amendment is called the "Sanctity of Marriage Amendment". These state amendments are different from the proposed Federal Marriage Amendment, which would ban same-sex marriage in every U.S. state, and the Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriages.
On July 31, 2012, Perry v. Brown, a Ninth Circuit case which held that Proposition 8 was unconstitutional, was appealed to the Supreme Court. There have also been several cases appealed to the Supreme Court challenging the constitutionality of the Defense of Marriage Act, such as Pedersen v. Office of Personnel Management. [] The Supreme Court will hear the arguments against Proposition 8 on March 26, 2013, in Hollingsworth v. Perry, and the arguments against DOMA on March 27, 2013, in Windsor v. United States.
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. In response, voters passed Hawaii Constitutional Amendment 2. 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. In November 1998, 69% of Hawaii voters approved the amendment, and the state legislature exercised its power to ban same-sex marriage. Only three constitutional bans on same-sex unions (in Alaska, Nebraska, and Nevada) were proposed between 1998 and 2003. All three amendments passed. 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. The following year, eleven constitutional referenda banning same-sex unions were placed on state ballots.
Purpose and motivation
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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 from interpreting their state's constitution to permit or require legalization of same-sex marriage.
- Prevent a state's courts from recognizing same-sex marriages that were legally performed in other jurisdictions.
Some proponents of such amendments fear 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)). They argue that if the full faith and credit clause did require recognition of same-sex marriages, state constitutional amendments would be trumped by the federal constitution due to the supremacy clause.
State referenda on constitutional bans of same-sex unions have been used as a "get-out-the-vote" tactic by Republicans and social conservatives. 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. 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. 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.
Nebraska is one of the states that added an amendment to its constitution to reinforce existing statutes defining marriage as only between one man and one woman. The amendment passed by a vote of 70 to 30 percent in 2000 as Nebraska Initiative Measure 416. In May 2005, in Citizens for Equal Protection v. Bruning, Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska held that the state constitutional amendment violates the United States Constitution. In July 2006, the United States Court of Appeals for the Eighth Circuit reversed his ruling, reinstated the measure, and holding that "laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States."
In Tennessee, groups sought to keep the amendment from reaching the ballot. On April 21, 2005, a lawsuit was filed by the American Civil Liberties Union of Tennessee, the Tennessee Equality Project, and other plaintiffs, claiming that the proposed amendment had not been published in a timely manner between legislative sessions as the state constitution required; specifically, the suit alleged that the newspaper publication of the proposed amendment had occurred only four months prior to the legislative election in November 2004 rather than the required six. This suit was dismissed at the appellate court level in March 2006 on the grounds that the legislature's intent to put the amendment before voters in November 2006 was widely reported in the media, meeting this requirement in spirit if not in letter. This decision was in turn appealed to the Tennessee Supreme Court, which rejected the ACLU's case in July 2006 due to lack of standing; this decision cleared the way for the amendment to appear on the November ballot. The amendment passed.
In 2010 the Wisconsin Supreme Court ruled that the state's marriage amendment was proper and did not violate the state constitution's "single subject" rule. In 2009 the Court refused in Appling v. Doyle to strike down the state's domestic partnership registry, enacted that year, directing the case to the circuit court. Current Governor Scott Walker asked in May 2011 to withdraw the state's defense of the domestic partnership registry. On June 20, 2011, Dane County Judge Dan Moeser ruled that the registry does not violate the state constitution, finding that the state "does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage".
Most of these amendments ban civil unions as well as same-sex marriage.
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.
States that have voted on amendments
- See List of U.S. state constitutional amendments banning same-sex unions by type for a more detailed list.
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.
|State||Initiative||Ban on||Date||Yes vote||No vote||Total votes||Voter turnout||Electorate||Final
|Alabama||Amendment 774||Marriage and
|June 6, 2006||697,591||81.2%||161,694||18.8%||859,285||25.73%||3,338,467||Yes|
|Alaska||Ballot Measure 2||Marriage||November 3, 1998||152,965||68.1%||71,631||31.9%||170,596||Yes|
|Arizona||Proposition 107||Marriage and
|November 7, 2006||721,789||48.2%||775,498||51.8%||1,496,987||38.15%||3,923,786||No|
|Arizona||Proposition 102||Marriage||November 4, 2008||1,258,355||56.2%||980,753||43.8%||2,239,078||55.33%||2,987,451||Yes|
|Arkansas||Constitutional Amendment 3||Marriage and
|November 2, 2004||753,770||74.95%||251,914||25.04%||1,005,684||51.07%||1,969,208||Yes|
|California||Proposition 8||Marriage||November 4, 2008||7,001,084||52.24%||6,401,482||47.76%||13,743,177||61.73%||22,261,504||Yes1|
|Colorado||Amendment 43||Marriage||November 7, 2006||855,126||55.02%||699,030||44.98%||1,554,156||47.13%||3,297,308||Yes|
|Florida||Amendment 2||Marriage and
|November 4, 2008||4,890,883||61.92%||3,008,026||38.08%||8,456,329||66.65%||12,687,407||Yes|
|Georgia||Constitutional Amendment 1||Marriage and
|November 2, 2004||2,454,930||76.2%||768,716||23.8%||3,223,646||54.84%||5,878,186||Yes 2|
|Hawaii||Constitutional Amendment 2||Marriage ban
|November 3, 1998||285,384||69.18%||117,827||28.56%||403,211||Yes 3|
|Idaho||Amendment 2||Marriage and
|November 7, 2006||282,386||63.4%||163,384||36.6%||445,770||49.04%||908,925||Yes|
|Kansas||Proposed amendment 1||Marriage and
|April 5, 2005||417,675||69.94%||179,432||30.06%||597,107||Yes|
|Kentucky||Constitutional Amendment 1||Marriage and
|November 2, 2004||1,222,125||74.55%||417,097||25.45%||1,639,222||53.6%||3,057,741||Yes|
|Louisiana||Constitutional Amendment 1||Marriage and
|September 18, 2004||619,908||77.79%||177,067||22.21%||796,975||25.04%||3,182,762||Yes 4|
|Michigan||State Proposal - 04-2||All types of same-sex unions||November 2, 2004||2,698,077||58.63%||1,904,319||41.37%||4,602,396||63.36%||7,263,024||Yes5|
|Minnesota||Amendment 1||Marriage||November 6, 2012||1,399,676||47.44%||1,549,676||52.56%||2,950,780||76.11%||3,876,752||No|
|Mississippi||Amendment 1||Marriage||November 2, 2004||957,104||86.01%||155,648||13.99%||1,112,752||53.78%||2,068,766||Yes|
|Missouri||Constitutional Amendment 2||Marriage||August 3, 2004||1,055,771||70.6%||439,529||29.4%||1,495,300||35.76%||4,180,960||Yes|
|Montana||Initiative 96||Marriage||November 2, 2004||295,070||66.55%||148,263||33.45%||443,333||63.41%||699,114||Yes|
|Nebraska||Initiative Measure 416||Marriage and
|November 7, 2000||450,07||70.36%||189,555||29.64%||639,628||52.24%||1,224,178||Yes 6|
|Nevada||Question 2||Marriage||November 7, 2000||412,688||69.62%||180,077||30.38%||592,765||44.03%||1,346,116||Yes|
|Nevada||Question 2||Marriage||November 7, 2002||412,688||69.62%||180,077||30.38%||592,765||42.61%||1,391,100||Yes|
|North Carolina||Amendment 1||Marriage and
|May 8, 2012||1,317,178||61.04%||840,802||38.96%||2,157,980||34.66%||6,296,759||Yes|
|North Dakota||Constitutional Measure 1||Marriage and
|November 2, 2004||223,572||73.23%||81,716||26.77%||305,288||63.24%||482,722||Yes|
|Ohio||State Issue 1||Marriage and
|November 2, 2004||3,329,335||61.71%||2,065,462||38.29%||5,394,797||64.01%||8,427,696||Yes|
|Oklahoma||State Question 711||Marriage and
|November 2, 2004||1,075,216||75.58%||347,303||24.42%||1,422,519||56.65%||2,510,823||Yes|
|Oregon||Measure 36||Marriage||November 2, 2004||1,028,546||56.63%||787,556||43.37%||1,816,102||71.19%||2,550,887||Yes|
|South Carolina||Amendment 1||Marriage and
|November 7, 2006||829,360||77.97%||234,316||22.03%||1,063,676||33.74%||3,152,046||Yes|
|South Dakota||Amendment C||Marriage and
|November 7, 2006||172,305||51.83%||160,152||48.17%||332,457||57.26%||580,592||Yes|
|Tennessee||Amendment 1||Marriage||November 7, 2006||1,419,434||81.3%||327,536||18.7%||1,746,970||39.4%||4,433,921||Yes|
|Texas||Proposition 2||Marriage and
|November 8, 2005||1,723,782||76.25%||536,913||23.74%||2,260,695||17.97%||12,577,545||Yes 7|
|Utah||Constitutional Amendment 3||Marriage and
|November 2, 2004||593,297||65.86%||307,488||34.14%||900,785||57.21%||1,574,463||Yes|
|Virginia||Marshall-Newman Amendment||All types of same-sex unions||November 7, 2006||1,328,537||57.06%||999,687||42.94%||2,328,224||43.23%||5,385,522||Yes|
|Wisconsin||Referendum 1||Marriage and
|November 7, 2006||1,264,310||59.4%||862,924||40.6%||2,127,234||52.33%||4,064,432||Yes|
- 1 Ban declared unconstitutional pending appeal on August 4, 2010, by Judge Vaughn R. Walker, former Chief Justice of the United States District Court for the Northern District of California. A Ninth Circuit Court of Appeals panel affirmed the decision that Proposition 8 was unconstitutional. The stay has remained in place as the appeals continued to the U.S. Supreme Court, which heard oral arguments on March 26, 2013. The Court is expected to issue its ruling by late June 2013.
- 2 Ban declared unconstitutional on May 16, 2006, by Fulton County Superior Court Judge Constance C. Russell, who said it violated the single-subject rule in Georgia's constitution. Governor Sonny Perdue said he was disappointed by the decision, which he said ran contrary to the voice of Georgia voters. The following day, the ruling was appealed to the Supreme Court of Georgia. On July 6, 2006 the Georgia Supreme Court ruled that the ban did not violate the single-subject rule.
- 3 Does not explicitly define marriage, but allows the legislature to define marriage.
- 4 On October 6, 2004, a Louisiana district judge tossed out the approved amendment saying it addressed two subjects: marriage and civil unions. Shortly after, the Louisiana Supreme Court unanimously overturned that ruling and found the amendment valid.
- 5 On May 7, 2008 the Michigan Supreme Court held that the amendment bans not only same-sex marriage and civil unions, but also public employee domestic partnership benefits.
- 6 Ban declared unconstitutional by Judge Joseph Bataillon, Chief Judge of the U.S. District Court for the District of Nebraska. The ruling was appealed to the Eighth U.S. Circuit Court of Appeals based in St. Louis. That Court issued a ruling that re-instated the ban, declaring in part that it was a legitimate state interest.[dead link]
- 7 On October 2, 2009, a Texas district court judge in the case of In Re Marriage of J.B. and H.B. granted a divorce to two men married in Massachusetts, ruling unconstitutional the state's same-sex marriage ban. On August 31, 2010, the Fifth Court of Appeals in Dallas reversed the lower court, ruling, among other things, that the same-sex marriage ban does not violate the Equal Protection Clause of the Fourteenth Amendment. On January 7, 2011, the Third Court of Appeals in Austin in the case of State of Texas v. Angelique S. Naylor and Sabina Daly rejected, on procedural grounds, the Texas attorney general's appeal of a divorce granted by a lower court to a same-sex couple married in Massachusetts. Both cases are pending before the Texas Supreme Court.
Results of state constitutional amendments banning same-sex marriage by counties in the 2000 US election.
Results of Missouri Constitutional Amendment 2 by counties on August 3, 2004.
Results of Louisiana Constitutional Amendment 1 by counties on September 18, 2004.
Results of state constitutional amendments banning same-sex marriage by counties in the 2004 US election.
Results of Kansas Amendment 1 by counties on April 5, 2005.
Results of Alabama Amendment 774 by counties on June 6, 2006.
Results of state constitutional amendments banning same-sex marriage by counties in the 2006 US election.
Results of state constitutional amendments banning same-sex marriage by counties in the 2008 US election.
Results of North Carolina Amendment 1 by counties on May 8, 2012.
- 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.
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- 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 3 November 2006.
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- November 2006 Tennessee General Election, Constitutional Amendment Questions
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