U.S. state constitutional amendments banning same-sex unions
Many U.S. states enacted amendments to their state constitutions which prevented the recognition of some or all types of same-sex unions, but all such amendments were struck down by the Supreme Court of the United States on June 26, 2015, in the case of Obergefell v. Hodges. Some amendments prevented a state from legalizing same-sex marriage, civil unions and domestic partnerships, while others banned only same-sex marriage. By May 2012, voters in 30 states had approved such amendments. While the actual text of these amendments still remains written into the various state constitutions, the Obergefell decision has rendered them unenforceable insofar as they prevented same-sex couples from marrying.
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 allowed the states not to recognize same-sex marriages from other 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 forbade a state from recognizing even non-marital civil unions and domestic partnerships, while others explicitly allowed for same-sex unions that were not called "marriages".
Such amendments had 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 would be forced to recognize same-sex marriages celebrated in other jurisdictions. They pointed 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 argued that state constitutional amendments would 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 case decided by a unanimous Supreme Court, which confirmed that the full faith and credit clause did require recognition of all legal marriages. Similarly, in Obergefell v. Hodges the Supreme Court ruled that the federal constitution required state recognition of same-sex marriages. All state constitutions are 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.
Most of these amendments banned civil unions as well as same-sex marriage.
Two marriage amendments differed greatly from all others: Hawaii's and Virginia's. The former gave the Hawaii state legislature the authority to ban same-sex marriages but did not explicitly make such unions unconstitutional. Virginia's amendment not only banned same-sex marriage and civil unions, but arguably rendered any state recognition of private contracts entered into by unmarried couples unconstitutional.
States that have voted on amendments
The following table shows all popular vote results on state constitutional amendments that banned same-sex marriage, or, in the case of Hawaii, that granted the legislature authority to ban same-sex marriage.
|State||Date||Yes vote||No vote||Vote outcome|
|Alaska||1998||68% (152,965)||32% (71,631)||Yes|
|Hawaii||1998||71% (285,384)||29% (117,827)||Yes|
|Nevada||2002||67% (337,183)||33% (164,555)||Yes|
|Montana||2004||67% (295,070)||33% (148,263)||Yes|
|Oregon||2004||57% (1,028,546)||43% (787,556)||Yes|
|Utah||2004||66% (593,297)||34% (307,488)||Yes|
|Arizona||2006||48% (574,332)||52% (607,769)||No|
|Colorado||2006||56% (865,126)||44% (674,030)||Yes|
|Idaho||2006||63% (282,301)||37% (163,408)||Yes|
|Arizona||2008||56% (1,258,355)||44% (980,753)||Yes|
|California||2008||52% (7,001,084)||48% (6,401,482)||Yes|
|Nebraska||2000||70% (450,073)||30% (189,555)||Yes|
|Missouri||2004||71% (1,055,771)||29% (439,529)||Yes|
|Michigan||2004||59% (2,698,077)||41% (1,904,319)||Yes|
|North Dakota||2004||73% (223,572)||27% (81,716)||Yes|
|Ohio||2004||62% (3,329,335)||38% (2,065,462)||Yes|
|Oklahoma||2004||76% (1,075,216)||24% (347,303)||Yes|
|Kansas||2005||70% (414,106)||30% (178,018)||Yes|
|South Dakota||2006||52% (172,242)||48% (160,173)||Yes|
|Wisconsin||2006||59% (1,260,554)||41% (861,554)||Yes|
|Minnesota||2012||47% (1,399,938)||53% (1,550,844)||No|
|Louisiana||2004||78% (618,928)||22% (177,103)||Yes|
|Arkansas||2004||75% (753,770)||25% (251,914)||Yes|
|Georgia||2004||76% (2,454,912)||24% (768,703)||Yes|
|Kentucky||2004||75% (1,222,125)||25% (417,097)||Yes|
|Mississippi||2004||86% (957,104)||14% (155,648)||Yes|
|Texas||2005||76% (1,718,513)||24% (536,052)||Yes|
|Alabama||2006||81% (734,746)||19% (170,399)||Yes|
|South Carolina||2006||78% (825,766)||22% (232,978)||Yes|
|Tennessee||2006||81% (1,419,434)||19% (327,536)||Yes|
|Virginia||2006||57% (1,328,134)||43% (998,483)||Yes|
|Florida||2008||62% (4,890,883)||38% (3,008,026)||Yes|
|North Carolina||2012||61% (1,317,976)||39% (840,802)||Yes|
Obergefell v. Hodges
On June 26, 2015 the U.S. Supreme Court ruled in Obergefell that state laws banning same-sex marriage violate the Fourteenth Amendment, rendering such laws unconstitutional and invalidating the remaining 14 same-sex marriage bans still being fully or partially enforced.
As of 2016, bills have been introduced in Virginia and other states to legislatively repeal the null-and-void amendments.
- Virginia's amendment also banned private contracts that are marital in nature, while Hawaiʻi's amendment merely gave the state the power to ban same-sex marriage.
- "Amendment One: How it changes North Carolina law". globalpost.com. Retrieved May 9, 2012.
- "A Contentious Debate: Same-Sex Marriage in the U.S". Pew Forum. July 9, 2009. Retrieved February 5, 2012.
- "Special Report: 'I do'" Honolulu Star-Bulletin January 22, 1997
- "Gay Marriage Timeline". Pew Forum. April 1, 2008. Retrieved February 5, 2012.
- "Homosexual (same-sex) marriages in Hawaii" Robinson, B.A. Religious Tolerance. 1997-JUL-11, updated 2001-DEC-2
- "Same-sex marriage ballot measures: Hawaii gives legislature power to ban same-sex marriage" AllPolitics. CNN. November 3, 1998
- 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.
- "Same-sex marriage in Alaska". Religious Tolerance. Retrieved February 5, 2012.
- 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.
- Vogel, Ed (February 23, 2011). "Legal challenge to Nevada's anti-gay marriage amendment not expected". Las Vegas Review-Journal.
- Masci, David (April 10, 2008). "An Overview of the Same-Sex Marriage Debate - Pew Research Center". Pew Research. Retrieved February 5, 2012.
- "Election 2004 - Ballot Measures". CNN. April 13, 1970. Retrieved February 5, 2012.
- Andrea Stone, Drives to ban gay adoption heat up in 16 states, USA Today, February 20, 2006
- Pauline J. Chang, Wisconsin Conservatives Gear Up For Marriage Vote with 'Celebration', The Christian Post, October 25, 2006
- Joe Hanel, Elite donors fuel ballot initiatives, The Durango Herald, October 29, 2006
- "Antigay Campaigns Don't Get the Vote". November 2006. Lambda Legal website.
- "Ban on Same-Sex Unions Added to Va. Constitution". The Washington Post. November 8, 2006. Retrieved February 5, 2012.
- "Ban on Same-Sex Unions Added to Va. Constitution", by Chris L. Jenkins, The Washington Post, November 8, 2006
- "Marriage Measure Is an Amendment Too Far", by David Boaz, Cato Institute, November 3, 2006. property rights text of va ballot question no. 1
- Prior to Obergefell Alabama and Kansas had one or more court ruling invalidating the state's same-sex marriage bans but were not fully complying with the rulings.
- Sullivan, Patricia (29 July 2016). "Virginia still has laws banning gay marriage. Should that matter?". Washington Post. Retrieved 30 July 2016.