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.
- ^ Walden, Michael; Thoms, Peg, eds. (2007). Battleground: business. Vol. 2. Greenwood Publishing Group. p. 468. ISBN 978-0-313-34065-9.
- ^ 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.
- ^ 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.
- ^ National Pride At Work, Inc. et al. v. Governor of Michigan et al., 748 N.W.2d 524 (Mich 2008).Preview warning: Page using Template:Cite court with unknown parameter "format"
- ^ 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.
- ^ "Gay rights ballot initiatives". Gaydemographics.org. Archived from the original on October 16, 2006. Retrieved November 30, 2006.
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