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

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]

On February 2, 2008, Florida4Marriage.org submitted their petition with enough signatures by the deadline to get Amendment 2, an initiated constitutional amendment prohibiting same-sex marriage and any "other legal union that is treated as marriage or the substantial equivalent" on the ballot for the 2008 general election in Florida.^[17] On February 6, 2008, the California Supreme Court scheduled a March 4, 2008 hearing for the case of In re Marriage Cases and a ruling is due within 90 days.^[18] In late April 2008, ProtectMarriage.com submitted their petition containing 1,120,801 signatures, which was 426,447 more signatures than was necessary to put the measure on the ballot, by the deadline to get the Marriage Protection Act, an initiated constitutional ballot proposition prohibiting same-sex marriage on the ballot for the 2008 general election in California.^[19]

On May 12, 2008, Arizona House of Representatives passed, by a vote of 35–25, Senate Concurrent Resolution 1042, legislatively referred constitutional ballot proposition to prohibit same-sex marriage that would appear on the ballot for the 2008 general election in Arizona.^[20] On May 15, 2008, the California Supreme Court ruled in the case of In re Marriage Cases, in a 4–3 decision, that laws directed at gays and lesbians are subject to strict scrutiny and same-sex couples' access to marriage is a fundamental right under Article 1, Section 7 of the California Constitution. The decision would go into effect on June 16, 2008.^[21] On June 2, 2008, Proposition 8 was certified, after county clerks verifying the validity of 3% of the signatures they received, for the 2008 general elections in California by California Secretary of State Debra Bowen.^[22]

On June 4, 2008, the Californian Supreme Court denied, by a 7–0 decision, a request for rehearing and a request to put a hold on the ruling, affirming that the decision would take effect as scheduled.^[23] On June 16, 2008, same-sex marriage was legalized in California. Proposition 8, originally intended as a judicial-preempting and legislation-preempting ballot proposition to prevent legalization of same-sex marriage, would now be a ballot proposition overturning same-sex marriage legalization in California. On June 27, 2008, the Arizona Senate passed, by a vote of 16–4, Senate Concurrent Resolution 1042, thus putting Proposition 102 on ballot for the 2008 general election in Arizona.^[20]

On November 4, 2008, Amendment 2, Proposition 102 and Proposition 8 passed. On November 5, 2008, of the California Constitution was amended to add Article I, Section 7.5, which prohibited same-sex marriage, thus making California the 28th state to constitutionally prohibit same-sex marriage and the first jurisdiction anywhere to overturn the legalization of same-sex marriage.

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.

Between 2004 and 2011, bills were introduced every year in the North Carolina General Assembly to implement a legislatively-referred constitutional amendment prohibiting same-sex marriage in the North Carolina Constitution. Until 2011, all those bills died in committee without a vote. After the 2010 elections, Republicans gained control of both the House of Representatives and the Senate for the first time since 1870. On September 12, 2011, Senate Bill 514, a legislatively-referred constitutional amendment to prohibit same-sex marriage and any "domestic legal union", passed the House by a vote of 75–42.^[24][25][26] The bill passed the three-fifths threshold (72 votes) in the House with the support of 10 Democrats. Authors of the amendment decided to place it on the May 2012 primary ballot rather than the November 2012 general election ballot. According to reporter Kim Severson, the change from the November to the May ballot was made due to the fact that Republican presidential primaries would be held that same date, ensuring a high voter turnout for Republicans, a group of voters traditionally opposed to same-sex marriage. On September 13, the Senate voted 30–16 in favor of the measure.^[25] On May 8, 2012, North Carolina voters approved Amendment 1 by a vote of 61.04% to 38.96%.^[27]

State constitutional bans on same-sex unions were advocated as preempting amendments to potential future state court decisions or state legislation legalizing same-sex marriage. Of the 30 state constitutional amendments banning same-sex marriage, only California has legalized same-sex marriage prior to the enactment of their bans and only California, Nebraska, Nevada and Oregon had no statutory bans on same-sex marriage prior to the enactment of their constitutional bans. California was unique any state voting on a constitutional ban on same-sex marriage as both same-sex marriage and domestic partnerships, the equivalent of civil unions in the state, were legal in the state prior to the enactment of its constitutional bans. Voting yes on Proposition 8 would ban same-sex marriage, but keep domestic partnerships, while voting no would retain both. Of the 20 state constitutional amendments banning civil unions and civil union equivalents, none had legalized civil unions or civil union equivalents prior to the enactment of their bans and only Ohio, Texas, Utah and Virginia had statutory bans on civil unions or civil union equivalents prior to the enactment of their constitutional bans.

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 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.^[28][29] 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.^[28][30] 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.^[31] 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.^[32]

Most U.S. state constitutional amendments banning same-sex unions banned civil unions as well as same-sex marriage.^[33]

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.^[34]

The following states with constitutional amendments banning same-sex marriage and civil unions or civil union equivalents had enacted, either prior or after the ban, domestic partnerships in some cities, counties, towns or villages: Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Michigan, North Carolina, Ohio, Texas, Utah and Wisconsin.

• Arizona Proposition 107 – On November 7, 2006, Arizona rejected a constitutional amendment banning same-sex marriage and civil unions by 51.8% of the vote. Two years later Arizona voters approved a more narrow amendment banning only same-sex marriage.
• Minnesota Amendment 1 – On November 6, 2012, Minnesota rejected a constitutional amendment banning gay marriage with 51.90% of the electorate opposed. A majority of all votes cast would be required to amend the state constitution.

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.^[35]

As of 2016, bills have been introduced in Virginia and other states to legislatively repeal the null-and-void amendments.^[36]

• Same-sex marriage law in the United States by state