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

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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.[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 January 2014, 29 remain in effect;[4] 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".[5] 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, which allows the states not to recognize same-sex marriages from other states.

On June 26, 2013, the Supreme Court held in Hollingsworth v. Perry that the proponents of California's Proposition 8 had no standing to appeal, leaving in place the ruling that overturned the state constitution's same-sex marriage ban.[6]

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.[7] In response, voters passed Hawaii Constitutional Amendment 2.[8] 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.[9] In November 1998, 69% of Hawaii voters approved the amendment, and the state legislature exercised its power to ban same-sex marriage.[9][10] Only three constitutional bans on same-sex unions (in Alaska, Nebraska, and Nevada) were proposed between 1998 and 2003.[11] All three amendments passed.[12][13][14] 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.[15] The following year, eleven constitutional referenda banning same-sex unions were placed on state ballots.[16]

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 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.

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.[17][18] 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.[17][19] 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.[20] 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.[21]

Litigation[edit]

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.[22] 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 Ohio, a suit was filed seeking to prevent a state university from according its employees domestic partner benefits.[23] The suit was dismissed on the grounds that the plaintiff lacked standing.

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.[24][25] The amendment passed.[26]

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.[27] 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.[28] Current Governor Scott Walker asked in May 2011 to withdraw the state's defense of the domestic partnership registry.[29] 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".[30]

Current lawsuits[edit]

State lawsuits against same-sex marriage bans in the United States
  State ban on same-sex marriage currently being challenged in federal courts; Governor and state attorney general defending the ban in court
  State ban on same-sex marriage currently being challenged in federal courts; State attorney general defending the ban in court
  State ban on same-sex marriage currently being challenged in federal courts; Governor and state attorney general refuse to defend the ban in court
  State ban on same-sex marriage currently being challenged in state and federal courts; Governor defending the ban in court while the state attorney general refuses
  State ban on same-sex marriage currently being challenged in state and federal courts; Governor and state attorney general defending the ban in court
  State ban on same-sex marriage currently being challenged in state courts; State attorney general defending the ban in court
  State ban on same-sex marriage currently being challenged in state courts; Governor and state attorney general defending the ban in court
  State ban on same-sex marriage not currently being challenged in state or federal court

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. As of December 2013, 29 of the states that banned same-sex marriage did so by constitutional amendment.[31]

Federal court cases[edit]

State court cases[edit]

Repeal efforts[edit]

State Date Type of same-sex union Upper House Lower house Final
outcome
Yes No Yes No
Flag of Nevada.svg Nevada May 2013 Repeals Question 2 and legalizes marriage[32] 12 9 27 14 Advanced
20151 TBD
2016 Referendum
Flag of Wisconsin.svg Wisconsin 2014 Repeals Wisconsin Referendum 1 and legalizes marriage[33][34] Proposed

Notes:

  • 1 Two sessions of the Nevada Legislature must pass the measure in order to put the proposed constitutional amendment to a popular vote.[35]

Variants[edit]

Most of these amendments ban civil unions as well as same-sex marriage.[36]

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.[37]

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
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.

State Date Yes Yes vote No No vote Vote outcome
West:
Alaska 1998 68% (152,965) 32% (71,631) Yes Yes
Hawaii 1998 71% (285,384) 29% (117,827) Yes Yes
Nevada 2002 67% (337,183) 33% (164,555) Yes Yes
Montana 2004 67% (295,070) 33% (148,263) Yes Yes
Oregon 2004 57% (1,028,546) 43% (787,556) Yes Yes1
Utah 2004 66% (593,297) 34% (307,488) Yes Yes2
Arizona 2006 48% (574,332) 52% (607,769) No No
Colorado 2006 56% (865,126) 44% (674,030) Yes Yes
Idaho 2006 63% (282,301) 37% (163,408) Yes Yes3
Arizona 2008 56% (1,258,355) 44% (980,753) Yes Yes
California 2008 52% (7,001,084) 48% (6,401,482) Yes Yes4
Midwest:
Nebraska 2000 70% (450,073) 30% (189,555) Yes Yes
Missouri 2004 71% (1,055,771) 29% (439,529) Yes Yes
Michigan 2004 59% (2,698,077) 41% (1,904,319) Yes Yes5
North Dakota 2004 73% (223,572) 27% (81,716) Yes Yes
Ohio 2004 62% (3,329,335) 38% (2,065,462) Yes Yes
Oklahoma 2004 76% (1,075,216) 24% (347,303) Yes Yes6
Kansas 2005 70% (414,106) 30% (178,018) Yes Yes
South Dakota 2006 52% (172,242) 48% (160,173) Yes Yes
Wisconsin 2006 59% (1,260,554) 41% (861,554) Yes Yes7
Minnesota 2012 47% (1,399,938) 53% (1,550,844) No No
South:
Louisiana 2004 78% (618,928) 22% (177,103) Yes Yes
Arkansas 2004 75% (753,770) 25% (251,914) Yes Yes8
Georgia 2004 76% (2,454,912) 24% (768,703) Yes Yes
Kentucky 2004 75% (1,222,125) 25% (417,097) Yes Yes
Mississippi 2004 86% (957,104) 14% (155,648) Yes Yes
Texas 2005 76% (1,718,513) 24% (536,052) Yes Yes9
Alabama 2006 81% (734,746) 19% (170,399) Yes Yes
South Carolina 2006 78% (825,766) 22% (232,978) Yes Yes
Tennessee 2006 81% (1,419,434) 19% (327,536) Yes Yes
Virginia 2006 57% (1,328,134) 43% (998,483) Yes Yes10
Florida 2008 62% (4,890,883) 38% (3,008,026) Yes Yes
North Carolina 2012 61% (1,317,976) 39% (840,802) Yes Yes

Notes:

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 9 May 2012. 
  3. ^ "A Contentious Debate: Same-Sex Marriage in the U.S.". Pew Forum. 2009-07-09. Retrieved 2012-02-05. 
  4. ^ "Both Sides on Same-Sex Marriage Issue Focus on the Next State Battlegrounds". New York Times. Retrieved June 28, 2013. 
  5. ^ "Amendment 774 Ratified", Alabama State Legislature. Accessed 6 January 2006.
  6. ^ "Supreme Court rulings on same-sex marriage hailed as historic victory". CNN. Retrieved June 26, 2013. 
  7. ^ "Special Report: 'I do'" Honolulu Star-Bulletin January 22, 1997
  8. ^ "Gay Marriage Timeline". Pew Forum. 2008-04-01. Retrieved 2012-02-05. 
  9. ^ a b "Homosexual (same-sex) marriages in Hawaii" Robinson, B.A. Religious Tolerance. 1997-JUL-11, updated 2001-DEC-2
  10. ^ "Same-sex marriage ballot measures: Hawaii gives legislature power to ban same-sex marriage" AllPolitics. CNN. November 3, 1998
  11. ^ 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.
  12. ^ "Same-sex marriage in Alaska". Religious Tolerance. Retrieved 2012-02-05. 
  13. ^ Jody Brown and Bill Fancher, AgapePress (2005-05-15). "Family Advocates: Judicial Activism Runs Amok in Nebraska - Jody Brown and Bill Fancher". Crosswalk. Retrieved 2012-02-05. 
  14. ^ Vogel, Ed (February 23, 2011). "Legal challenge to Nevada's anti-gay marriage amendment not expected". Las Vegas Review-Journal. 
  15. ^ Masci, David (2008-04-10). "An Overview of the Same-Sex Marriage Debate - Pew Research Center". Pew Research. Retrieved 2012-02-05. 
  16. ^ "Election 2004 - Ballot Measures". CNN. 1970-04-13. Retrieved 2012-02-05. 
  17. ^ a b Andrea Stone, Drives to ban gay adoption heat up in 16 states, USA Today, February 20, 2006
  18. ^ Pauline J. Chang, Wisconsin Conservatives Gear Up For Marriage Vote with 'Celebration', The Christian Post, October 25, 2006
  19. ^ Joe Hanel, Elite donors fuel ballot initiatives, The Durango Herald, October 29, 2006
  20. ^ "Ban on Same-Sex Unions Added to Va. Constitution". The Washington Post. 2006-11-08. Retrieved 2012-02-05. 
  21. ^ Citizens for Equal Protection v. Bruning
  22. ^ "Lambda Legal Declares Victory: Miami University Employees Keep Domestic Partner Benefits", Lambdalegal.org, November 20, 2006
  23. ^ American Civil Liberties Union, et al. v. Riley Darnell, et al.. Accessed November 3, 2006.
  24. ^ Hearing Held in ACLU-TN Challenge to Proposed Constitutional Amendment Banning Same-Sex Marriage (January 20, 2006). ACLU of Tennessee. Accessed November 9, 2006.
  25. ^ November 2006 Tennessee General Election, Constitutional Amendment Questions
  26. ^ "High Court Upholds State Amendment Banning Same Sex Marriage". WUWM. Retrieved 2012-02-05. 
  27. ^ Wisconsin Supreme Court Rejects Case Seeking to Strip Away Domestic Partnership Protections (press release), Fair Wisconsin, Nov. 4, 2009.
  28. ^ "Wis. gov: Domestic partner law is unconstitutional". Associated Press. May 16, 2011. 
  29. ^ "Judge rules Wisconsin same sex registry is constitutional". Reuters. Retrieved 2012-02-05. 
  30. ^ Lawsuits Pending
  31. ^ Bill goes to Senate in 2015
  32. ^ http://www.greenfieldreporter.com/view/story/3447af965afd4dd1a845072bb669dae7/WI--XGR--Marriage-Equality-Bill
  33. ^ http://www.wisn.com/politics/wisconsin-politics/state-democrats-unveil-amendment-to-repeal-gay-marriage-ban/24467832
  34. ^ Hagar, Ray (April 28, 2013). "Long road ahead for marriage equality in Nevada". Reno Gazette-Journal. Retrieved May 24, 2013. 
  35. ^ "Ban on Same-Sex Unions Added to Va. Constitution", by Chris L. Jenkins, The Washington Post, November 8, 2006
  36. ^ "Marriage Measure Is an Amendment Too Far", by David Boaz, Cato Institute, November 3, 2006. property rights text of va ballot question no. 1