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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.[lower-alpha 1] In some states, one or both of these steps is repeated.[lower-alpha 2] The percentages shown in the list are results from the referendum stage, not the legislative stage.
The idea of extending marriage rights to same-sex couples did not become a political issue in the United States until the 1970s. In reaction to the on going litigation in the cases of Baehr v. Lewin and Brause v. Bureau of Vital Statistics,[7] during the 1998 United States elections, two states, Alaska and Hawaii, passed constitutional amendments, rendering both cases moot.[8][9][10] During the 2000 United States elections, two states, Nebraska and Nevada, passed amendments. During the 2002 United States elections, Nevada passed and ratified Question 2.[11][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] On August 3, 2004, during the 2004 primary election in Missouri, the state passed Constitutional Amendment 2. On September 18, 2004, during the 2004 special election in Louisiana, the state passed Amendment 1. During the 2004 United States elections, eleven states, Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon (which was in reaction to the on going litigation in the case of Li v. State and rendered it moot) and Utah, passed amendments.[16]
On April 5, 2005, during the 2005 special election in Kansas, the state passed Amendment 1. During the 2005 United States elections, Texas passed Proposition 2. On June 6, 2006, during the 2006 primary election in Alabama, the state passed Amendment 774. During the 2006 United States elections, seven states, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin passed amendments. During the 2008 United States elections, three states, Arizona, California (which was in reaction to the litigation and ruling in In re Marriage Cases and superseded it) and Florida passed amendments. On April 3, 2009, Nate Silver post his model of the predicted years that each of the 50 states would vote against a marriage ban, with the last one being Mississippi in 2024. During the 2012 primary election in North Carolina, the state passed Amendment 1, which rendered on going litigation in the case of Thigpen v. Cooper moot.
The purpose of passing U.S. state constitutional amendments banning same-sex unions was primarily to define marriage as exclusively between one man and one woman. These amendments were often introduced in response to increasing efforts by LGBTQ+ advocates to gain legal recognition of same-sex relationships, both at the state and national levels.[17] Supporters of these amendments argued that they were necessary to preserve the traditional definition of marriage.[18]
Such amendments had two main purposes:
Constitutional bans on same-sex marriage were advocated in response to judicial or statutory legalization of same-sex marriage in other jurisdictions, notably Massachusetts (Goodridge v. Department of Public Health), Canada (Civil Marriage Act), California (In re Marriage Cases), Connecticut (Kerrigan v. Commissioner of Public Health), Iowa (Varnum v. Brien) and New York (Marriage Equality Act).
State constitutional amendments banning same-sex unions are effective at restricting state supreme courts from overturning constitutional amendments banning same-sex unions, such as the 7-0 ruling in Louisiana v. Forum for Equality PAC, the 6-0 ruling in Perdue v. O'Kelley in Georgia, the 6-1 ruling in Strauss v. Horton in California and the 7-0 ruling in State v. Madigan in Wisconsin. The cases on Georgia, Louisiana and Wisconsin dealt with whether the amendment violated the single-subject rule, while the case in California dealt with whether the amendment was a valid revision of the state constitution, improper use of the initiative process and equal protection under the California Constitution.
Of the thirty U.S. state constitutional amendments banning same-sex marriage, two thirds (twenty) included provisions banning civil unions or civil union equivalents. One third (ten) of U.S. state constitutional amendments banning same-sex marriage were crafted to allow for the continued or future legalization of civil unions or domestic partnerships that were the equivalent of civil unions, which was done in four states: Oregon (since February 4, 2008), California (legal prior), Nevada (since October 1, 2009) and Colorado (since May 1, 2013). From 1997, the year the concept of civil unions was first coined and purposed in Vermont in response to Stan Baker et al. v. State of Vermont, to May 17, 2004, when same-sex marriage was legalized in Massachusetts, civil unions and domestic partnerships that were equivalent to civil unions were seen as a progressive to moderate position. After May 17, 2004, civil unions and civil union equivalents went from being seen as a progressive to moderate position to a conservative fallback position for those opposing same-sex marriage.
Some proponents of these amendments saw them as a way to mobilize conservative voters, particularly evangelical and socially conservative groups, who were motivated by opposition to same-sex marriage.[19] U.S. state constitutional amendments banning same-sex unions in the 1998, 2000, 2002, 2004, 2006, and 2008 general elections led to a mobilization and increase in conservative voters, particularly among evangelical and socially conservative groups, who were motivated by opposition to same-sex marriage.[19]
Hawaii's amendment granted the Hawaii State Legislature the authority to ban same-sex marriage, but did not explicitly make same-sex marriage unconstitutional. Ten states had constitutional amendments banning same-sex marriage, but did not explicitly make civil unions, designated beneficiary agreements, domestic partnerships and reciprocal beneficiary registries unconstitutional: Alaska, Arizona, California, Colorado, Mississippi, Montana, Missouri, Nevada, Oregon and Tennessee.
Eighteen states had constitutional amendments banning same-sex marriage and civil unions or civil union equivalents, but did not explicitly make domestic partnerships that were not the equivalent to civil unions unconstitutional: Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Nebraska, North Dakota, Ohio, Oklahoma, North Carolina, South Carolina, South Dakota, Utah and Wisconsin. Two states, North Carolina and South Carolina, had clauses in their amendments included clauses ensuring that it did not interfere with private contracts.
Two states, Nebraska and South Dakota, had constitutional amendments banning same-sex marriage and civil unions, civil union equivalents and domestic partnerships. Two states, Michigan and Virginia, had amendments that banning same-sex marriage, civil unions, civil union equivalents and other contracts, but only Michigan's amendment effected existing counties or municipalities domestic partnership registries, as Virginia had no counties or municipalities that had or could enact domestic partnerships registries without statutory approval due to Dillon's Rule. Oklahoma's amendment made it a felony, with an undefined punishment, for any official who knowingly issued a marriage license in violation of the amendment's provisions. No one was ever prosecuted under this amendment.
State | Year | Support vote % | Title | Amendment | Effective date |
Hawaii | 1998 | 69%[20][21] | Constitutional Amendment 2[20] | The legislature shall have the power to reserve marriage to opposite-sex couples.[22] | November 3, 1998 |
State | Year | Support vote % | Title | Amendment (in relevant part) | Effective date |
Alaska | 1998 | 68%[23] | Ballot Measure 2, Joint Resolution 42[23] | To be valid or recognized in this State, a marriage may exist only between one man and one woman.[24] | January 3, 1999 |
Missouri | 2004 | 72%[25] | Constitutional Amendment 2[26] | To be valid and recognized in this state, a marriage shall exist only between a man and a woman.[27] | August 28, 2004 |
Montana | 2004 | 67%[28] | Montana Initiative 96[28] | Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.[29] | November 18, 2004 |
Mississippi | 2004 | 86%[28] | Mississippi Amendment 1[28] | Marriage may take place and may be valid under the laws of this state only between a man and a woman.[30] | November 23, 2004 |
Oregon | 2004 | 57%[28] | Oregon Ballot Measure 36[31] | Only a marriage between one man and one woman shall be valid or legally recognized as a marriage.[32] | December 2, 2004 |
Tennessee | 2006 | 81%[33] | Tennessee Amendment 1[34] | 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.[34] | November 16, 2006 |
Colorado | 2006 | 56%[33] | Colorado Amendment 43[35] | Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.[35] | December 7, 2006 |
California | 2008 | 52%[36] | California Proposition 8[37] | Only marriage between a man and a woman is valid or recognized in California.[37] | November 5, 2008 |
Arizona | 2008 | 56%[36] | Arizona Proposition 102[38] | Only a union of one man and one woman shall be valid or recognized as a marriage in this state.[38] | December 1, 2008 |
State | Year | Support vote % | Title | Amendment (in relevant part) | Effective date |
Nebraska | 2000 | 70%[39] | Initiative Measure 416[39] | 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.[40] | December 7, 2000 |
Kentucky | 2004 | 75%[28] | Constitutional Amendment 1[41] | 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.[42] | November 9, 2004 |
Oklahoma | 2004 | 76%[28] | State Question 711[43] | 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.[44] | November 15, 2004 |
Arkansas | 2004 | 75%[28] | 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] | November 18, 2004 |
North Dakota | 2004 | 73%[28] | North Dakota Constitutional Measure 1[47] | 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.[48] | November 24, 2004 |
Ohio | 2004 | 62%[28] | State Issue 1[49] | 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.[50] | December 2, 2004 |
Georgia | 2004 | 76%[28] | Constitutional Amendment 1[51] | (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.[52] | January 1, 2005 |
Utah | 2004 | 66%[28] | Constitutional Amendment 3[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] | January 1, 2005 |
Louisiana | 2004 | 78%[28] | Constitutional Amendment 1[55] | 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.[56] | January 19, 2005 |
Kansas | 2005 | 70%[57] | Proposed Amendment 1[58] | (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.[59] | April 28, 2005 |
Texas | 2005 | 76%[60] | Proposition 2[60] | (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.[61] | November 30, 2005 |
Alabama | 2006 | 81%[62] | Sanctity of Marriage Amendment (Amendment 774)[63] | 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.[63] |
July 7, 2006 |
South Dakota | 2006 | 52%[33] | South Dakota Amendment C[33] | 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.[64] | November 15, 2006 |
Idaho | 2006 | 63%[33] | Idaho Amendment 2[33] | A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.[65] | November 24, 2006 |
Wisconsin | 2006 | 59%[33] | Wisconsin Referendum 1[33] | 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.[66] | November 29, 2006 |
South Carolina[lower-alpha 3] | 2006 | 78%[33] | South Carolina Amendment 1[33] | 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.[67] | March 28, 2007 |
Florida | 2008 | 62%[36] | Florida Amendment 2[68] | 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.[68] | January 6, 2009 |
North Carolina | 2012 | 61%[69] | North Carolina 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.[70] | May 29, 2012 |
State | Year | Support vote % | Title | Amendment | Effective date |
Michigan | 2004 | 59%[28] | State Proposal - 04-2[71] | 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.[72][73] | December 18, 2004 |
Virginia | 2006 | 57%[74] | Marshall-Newman Amendment[74] | 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.[75] | January 1, 2007 |
State | Year | Support vote % | Title | Amendment (in relevant part) | Effective date | Repeal date |
Nevada | 2000, 2002,[lower-alpha 2] 2020 | 69.6%, 67.1%,[lower-alpha 2] 62%[76] | 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.[77] 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."[78] | November 26, 2002 | November 24, 2020 |
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.[79]
As of 2016, bills have been introduced in Virginia and other states to legislatively repeal the null-and-void amendments.[80]
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