U.S. state constitutional amendments banning same-sex unions
  Constitutional amendment banned same-sex marriage, civil unions, and any marriage-like contract between unmarried persons
  Constitutional amendment banned same-sex marriage and civil unions
  Constitutional amendment banned same-sex marriage
  Constitutional amendment allowed legislatures to limit marriage to opposite-sex couples
  No state constitutional amendment banning legal recognition of same-sex unions
  Constitutional amendment recognizing same-sex marriage
Adoption of marriage amendments over time

Prior to the Supreme Court's decision in Obergefell v. Hodges (2015), U.S. state constitutional amendments banning same-sex unions of several different types passed, banning legal recognition of same-sex unions in U.S. state constitutions, referred to by proponents as "defense of marriage amendments" or "marriage protection amendments."[1] 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 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. The Obergefell decision in June 2015 invalidated these state constitutional amendments insofar as they prevented same-sex couples from marrying, even though the actual text of these amendments remain written into the state constitutions.

Thirty-one U.S. state constitutional amendments banning legal recognition of same-sex unions have been adopted. Of these, ten make only same-sex marriage unconstitutional; sixteen make both same-sex marriage and civil unions unconstitutional; two make same-sex marriage, civil unions, and other contracts 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] On November 3, 2020, Nevada became the first U.S. state to repeal its amendment banning same-sex marriage following approval of 2020 Nevada Question 2.

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.

History

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 referendums banning same-sex unions were placed on state ballots.[16]

Purpose and motivation

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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 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:

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.

Conservative mobilization

State referendums on constitutional bans of same-sex unions have at times been accused of having been used as a "get-out-the-vote" tactic by some 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 by some as supposedly 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 elections some activists argued that such referendums 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]

Variants

Most U.S. state constitutional amendments banning same-sex unions banned civil unions as well as same-sex marriage.[22]

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.[23]

Approved amendments

Amendments that grant legislative authority to ban same-sex marriage

State Year Support vote % Title Amendment
Hawaii 1998 69%[24][25] Constitutional Amendment 2[24] The legislature shall have the power to reserve marriage to opposite-sex couples.[26]

Amendments that ban same-sex marriage

State Year Support vote % Title Amendment (in relevant part)
Alaska 1998 68%[27] Ballot Measure 2, Joint Resolution 42[27] To be valid or recognized in this State, a marriage may exist only between one man and one woman.[28]
Mississippi 2004 86%[29] Mississippi Amendment 1[29] Marriage may take place and may be valid under the laws of this state only between a man and a woman.[30]
Missouri 2004 72%[31] Constitutional Amendment 2[32] To be valid and recognized in this state, a marriage shall exist only between a man and a woman.[33]
Montana 2004 67%[29] Montana Initiative 96[29] Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.[34]
Oregon 2004 57%[29] Oregon Ballot Measure 36[35] Only a marriage between one man and one woman shall be valid or legally recognized as a marriage.[36]
Colorado 2006 56%[37] Colorado Amendment 43[38] Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.[38]
Tennessee 2006 81%[37] Tennessee Amendment 1[39] 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.[39]
Arizona 2008 56%[40] Arizona Proposition 102[41] Only a union of one man and one woman shall be valid or recognized as a marriage in this state.[41]
California 2008 52%[40] California Proposition 8[42] Only marriage between a man and a woman is valid or recognized in California.[42]

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

State Year Support vote % Title Amendment (in relevant part)
Nebraska 2000 70%[43] Initiative Measure 416[43] 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.[44]
Arkansas 2004 75%[29] Constitutional Amendment 3[45] (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.[46]
Georgia 2004 76%[29] Constitutional Amendment 1[47] (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.[48]
Kentucky 2004 75%[29] Constitutional Amendment 1[49] 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.[50]
Louisiana 2004 78%[29] Constitutional Amendment 1[51] 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.[52]
North Dakota 2004 73%[29] North Dakota Constitutional Measure 1[53] 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.[54]
Ohio 2004 62%[29] State Issue 1[55] Only a union between one man and one woman may be a marriage valid in or recognized by this state. This state and 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.[56]
Oklahoma 2004 76%[29] State Question 711[57] 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.[58]
Utah 2004 66%[29] Constitutional Amendment 3[59] 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.[60]
Kansas 2005 70%[61] Proposed Amendment 1[62] (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.[63]
Texas 2005 76%[64] Proposition 2[64] (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.[65]
Alabama 2006 81%[66] Sanctity of Marriage Amendment (Amendment 774)[67] 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.[67]

Idaho 2006 63%[37] Idaho Amendment 2[37] A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.[68]
South Carolina[c] 2006 78%[37] South Carolina Amendment 1[37] 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.[69]
South Dakota 2006 52%[37] South Dakota Amendment C[37] 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.[70]
Wisconsin 2006 59%[37] Wisconsin Referendum 1[37] 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.[71]
Florida 2008 62%[40] Florida Amendment 2[72] 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.[72]
North Carolina 2012 61%[73] 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.[74]

Amendments that ban same-sex marriage, civil unions, and other contracts

State Year Support vote % Title Amendment
Michigan 2004 59%[29] State Proposal - 04-2[75] 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.[76][77]
Virginia 2006 57%[78] Marshall-Newman Amendment[78] 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.[79]

Repealed amendments

State Year Support vote % Title Amendment (in relevant part)
Nevada 2000, 2002,[b] 2020 69.6%, 67.1%,[b]
62%[80]		 2002 Nevada Question 2[6]
2020 Nevada Question 2		 2002 Nevada Question 2: Only a marriage between a male and female person shall be recognized and given effect in this state.[81]
2020 Nevada Question 2: "1. The State of Nevada and its political subdivisions shall recognize marriages and issue marriage licenses to couples regardless of gender. 2. Religious organizations and members of the clergy have the right to refuse to solemnize a marriage, and no person has the right to make any claim against a religious organization or member of the clergy for such a refusal. 3. All legally valid marriages must be treated equally under the law."[82]

Failed amendments

Obergefell v. Hodges

Main article: 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.[83]

As of 2016, bills have been introduced in Virginia and other states to legislatively repeal the null-and-void amendments.[84]

See also

Notes

  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.[5]
  2. ^ a b c Amendments to the Nevada state constitution must be approved by the voters in two consecutive elections.[6]
  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."[69]

References

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  2. ^ Freehling, Bill (November 21, 2006). "Test case is urged by ACLU". The Free Lance-Star. Archived from the original on January 2, 2013. 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. Archived from the original (PDF) on March 20, 2017. Retrieved December 15, 2006.
  4. ^ National Pride At Work, Inc. et al. v. Governor of Michigan et al., 748 N.W.2d 524 (Mich 2008).
  5. ^ 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. doi:10.2307/2944709. JSTOR 2944709. S2CID 144713465.
  6. ^ a b "Gay rights ballot initiatives". Gaydemographics.org. Archived from the original on October 16, 2006. Retrieved November 30, 2006.
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  8. ^ "Gay Marriage Timeline". Pew Forum. April 1, 2008. Retrieved February 5, 2012.
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  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 November 3, 2006.
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  38. ^ a b Constitutional Amendment Issues Tennessee Secretary of State. No date, author given. Accessed December 14, 2006.
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  82. ^ 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.
  83. ^ Sullivan, Patricia (July 29, 2016). "Virginia still has laws banning gay marriage. Should that matter?". Washington Post. Retrieved July 30, 2016.
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