List of U.S. state constitutional amendments banning same-sex unions by type

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Current U.S. state constitutional amendments banning legal recognition of same-sex unions, by type
  Constitutional amendment bans same-sex marriage, civil unions, and any marriage-like contract between unmarried persons
  Constitutional amendment bans same-sex marriage and civil unions
  Constitutional amendment bans same-sex marriage
  Constitutional amendment grants legislature authority to ban same-sex marriage
  No U.S. state constitutional amendment banning legal recognition of same-sex unions
The adoption of U.S. state constitutional amendments banning legal recognition of same-sex unions over time

There are several different types of state constitutional amendments banning legal recognition of same-sex unions in U.S. state constitutions, referred to by proponents as defense of marriage amendments.[1] 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. As of May 2012, Massachusetts, Connecticut, Iowa, Vermont, New York, and New Hampshire are the only U.S. states to allow same-sex marriage. The District of Columbia also allows same-sex marriages.

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, seventeen 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] California Proposition 8 was declared unconstitutional by Vaughn R. Walker, chief judge of the United States District Court for the Northern District of California, on August 4, 2010, in Perry v. Schwarzenegger, but his ruling was put on hold pending a request for a stay the same day.[5] Nebraska Initiative Measure 416 was declared unconstitutional by Joseph F. Bataillon, district judge on the United States District Court for the District of Nebraska, in November, 2005 in Citizens for Equal Protection v. Bruning, but his ruling was reversed on appeal by the United States Court of Appeals for the Eighth Circuit, which ruled that "laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States."[6]

This list only covers bans of civil unions, private contracts between same-sex couples and same-sex marriage in state constitutions; state statutes are not listed. The text of these amendments sometimes runs several paragraphs. In this event, excerpts of the most important phrases or sentences are included in this list.

State constitutional amendments are typically approved first by the legislature or special constitutional convention and then by the voters in a referendum.N-[1] In some states, one or both of these steps is repeated.N-[2] The percentages shown in the list are results from the referendum stage, not the legislative stage.

Contents

Amendments that grant legislative authority to ban same-sex marriage

Hawaii's constitutional ban on same-sex unions.svg
StateYearSupport vote %TitleAmendment
Hawaii199869%[7][8]Constitutional Amendment 2[7]The legislature shall have the power to reserve marriage to opposite-sex couples.[9]

Amendments that ban same-sex marriage

Type I constitutional ban on same-sex unions US.svg
StateYearSupport vote %TitleAmendment (in relevant part)
Alaska199868%[10]Ballot Measure 2, Joint Resolution 42[10]To be valid or recognized in this State, a marriage may exist only between one man and one woman.[11]
Nevada2000, 2002N-[2]69.6%; 67.1%N-[2]Nevada Question No. 2[12]Only a marriage between a male and female person shall be recognized and given effect in this state.[13]
Mississippi200486%[14]Mississippi Amendment 1[14]Marriage may take place and may be valid under the laws of this state only between a man and a woman.[15]
Missouri200472%[16]Constitutional Amendment 2[17]To be valid and recognized in this state, a marriage shall exist only between a man and a woman.[18]
Montana200467%[14]Montana Initiative 96[14]Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.[19]
Oregon200457%[14]Oregon Ballot Measure 36[20]Only a marriage between one man and one woman shall be valid or legally recognized as a marriage.[21]
Colorado200656%[22]Colorado Amendment 43[23]Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.[23]
Tennessee200681%[22]Tennessee Amendment 1[24]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.[24]
Arizona200856%[25]Arizona Proposition 102[26]Only a union of one man and one woman shall be valid or recognized as a marriage in this state.[26]
California200852%[25]California Proposition 8[27]Only marriage between a man and a woman is valid or recognized in California.[27]

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

Type II constitutional ban on same-sex unions US.svg
StateYearSupport vote %TitleAmendment (in relevant part)
Nebraska200070%[28]Initiative Measure 416[28]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.[29]
Arkansas200475%[14]Constitutional Amendment 3[30](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.[31]
Georgia200476%[14]Constitutional Amendment 1[32](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.[33]
Kentucky200475%[14]Constitutional Amendment 1[34]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.[35]
Louisiana200478%[14]Constitutional Amendment 1[36]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.[37]
North Dakota200473%[14]North Dakota Constitutional Measure 1[38]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.[39]
Ohio200462%[14]State Issue 1[40]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.[41]
Oklahoma200476%[14]State Question 711[42]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.[43]
Utah200466%[14]Constitutional Amendment 3[44]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.[45]
Kansas200570%[46]Proposed Amendment 1[47](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.[48]
Texas200576%[49]Proposition 2[49](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.[50]
Alabama200681%[51]Sanctity of Marriage Amendment (Amendment 774)[52]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.[52]

Idaho200663%[22]Idaho Amendment 2[22]A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.[53]
South CarolinaN-[3]200678%[22]South Carolina Amendment 1[22]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.[54]
South Dakota200652%[22]South Dakota Amendment C[22]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.[55]
Wisconsin200659%[22]Wisconsin Referendum 1[22]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.[56]
Florida200862%[25]Florida Amendment 2[57]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.[57]
North Carolina201261%[58]North Carolina Amendment 1Marriage 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.[59]

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

Virginia and Michigan's constitutional bans on same-sex unions.svg
StateYearSupport vote %TitleAmendment
Michigan200459%[14]State Proposal - 04-2[60]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.[61][62]
Virginia200657%[63]Marshall-Newman Amendment[63]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.[64]

Notes

n-[1] a 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.[65]

n-[2] a b c Amendments to the Nevada state constitution must be approved by the voters in two consecutive elections.[12]

n-[3] a 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."[54]

References

  1. ^ Walden, Michael; Thoms, Peg, eds. (2007). Battleground: business. 2. Greenwood Publishing Group. p. 468. ISBN 978-0-313-34065-9. http://books.google.com/?id=UWIhthzfKfcC&pg=PA468. 
  2. ^ Test case is urged by ACLU, by Bill Freehling, The Free Lance-Star, November 21, 2006. Accessed December 15, 2006.
  3. ^ Potential Impact of the Proposed Marshall/Newman Amendment to the Virginia Constitution, by Melissa Glidden, Brenda Jackson-Cooper, and Leslie Nickel, Arnold & Porter, LLP, August 11, 2006. Accessed December 15, 2006.
  4. ^ National Pride At Work, Inc. et al. v. Governor of Michigan et al., Michigan Supreme Court, May 7, 2008.
  5. ^ Conant, Eve (August 4, 2010). "Prop 8 Ruling Is Just the Beginning". Newsweek. http://www.newsweek.com/2010/08/05/prop-8-ruling-is-just-the-beginning.html. Retrieved August 5, 2010. 
  6. ^ Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)
  7. ^ a b Same-sex marriage ballot measures: Hawaii gives legislature power to ban same-sex marriage AllPolitics. CNN.com. November 3, 1998. (Accessed November 30, 2006)
  8. ^ General Election 1998, Hawaii Office of Elections, 1998-11-03, http://hawaii.gov/elections/results/1998/general/98swgen.htm, retrieved 2010-07-06 
  9. ^ Hawai`i State Constitution, Article I, section 23, Hawaii Legislative Reference Bureau. (Accessed November 30, 2006). This amendment does not ban same sex marriage; rather, it grants the power to do so to the state.
  10. ^ a b Homosexual (same-sex) marriages in Alaska Robinson, B.A. ReligiousTolerance.org. Accessed November 30, 2006)
  11. ^ Alaska Sate Constitution Hosted on the Alaska Legislature's website. Accessed November 30, 2006.
  12. ^ a b Gay rights ballot initiatives Gaydemographics.org Accessed November 30, 2006.
  13. ^ "The Constitution of the State of Nevada" Hosted on the Nevada Legislature's website. Accessed November 30, 2006.
  14. ^ a b c d e f g h i j k l m n CNN.com Election 2004 - Ballot Measures Accessed November 30, 2006.
  15. ^ "DOMAwatch.org - Mississippi" Alliance Defense Fund. 2006. Accessed December 14, 2006.
  16. ^ Gay Marriage Ban in Mo. May Resonate Nationwide Cooperman, Alan Washington Post August 5, 2004. Accessed December 14, 2006. Missouri's Amendment was the first such referendum voted on since same-sex marriage was legalized in Massachusetts.
  17. ^ "Elections: 2004 Ballot Measures" Missouri Secretary of State.
  18. ^ "Article I, Bill of Rights, Section 33" Missouri Constitution. Missouri General Assembly. Accessed December 14, 2006.
  19. ^ The Montana Constitution" Hosted on the Montana Legislature's website. Accessed November 30, 2006.
  20. ^ Oregon Voter's Guide page for Measure 36. Oregon Secretary of State. 2004. Accessed December 14, 2006.
  21. ^ The Constitution of the State of Oregon Article XV (Miscellaneous) Section 5a. Hosted on the Oregon Legislature's website. Accessed December 14, 2006.
  22. ^ a b c d e f g h i j CNN.com Election 2006 - Ballot Measures Accessed December 14, 2006.
  23. ^ a b Analysis of the 2006 Ballot Proposals (Research Publication No. 554) Legislative Council of the Colorado General Assembly. p.13 Accessed December 14, 2006.
  24. ^ a b Constitutional Amendment Issues Tennessee Secretary of State. No date, author given. Accessed December 14, 2006.
  25. ^ a b c CNN.com Election 2008 - Ballot Measures Accessed November 10, 2008.
  26. ^ a b 2008 Ballot Proposition Guide, Arizona Secretary of State Jan Brewer, September 2008. Accessed November 11, 2008.
  27. ^ a b Text of Proposed Laws, California Secretary of State, p. 128. Accessed November 10, 2008.
  28. ^ a b Statewide General Election 2000 Results, Constitutional Amendments and Initiative Measures, Nebraska Secretary of State, p. 21-22. Accessed December 17, 2006.
  29. ^ Nebraska State Constitution, Article I, section 29, Nebraska Legislative Documents Legislature. Accessed December 15, 2006.
  30. ^ Arkansas Initiatives & Amendments, 1938-2004, p. 20, Arkansas Secretary of State. Accessed December 18, 2006.
  31. ^ Arkansas State Constitution, 83rd Amendment, Arkansas Legislature. Accessed December 18, 2006.
  32. ^ Official Results of the November 2, 2004 General Election, Georgia Secretary of State. Accessed December 18, 2006.
  33. ^ Constitution of the State of Georgia, Article I, section IV, Georgia Secretary of State. Accessed December 18, 2006.
  34. ^ 2004 Election Night Tally Results, Kentucky State Board of Elections. Accessed December 18, 2006.
  35. ^ Kentucky Constitution, Section 233A, Kentucky Legislature. Accessed December 18, 2006.
  36. ^ Results for Election Date: 9/18/04, Louisiana Secretary of State. Accessed December 19, 2006.
  37. ^ Louisiana Constitution, Article 12, section 15, Louisiana State Senate. Accessed December 19, 2006.
  38. ^ Election Results, 2004 General Election, North Dakota Secretary of State Election Management System. Accessed December 20, 2006.
  39. ^ North Dakota Constitution, Article XI, section 28. Accessed December 20, 2006.
  40. ^ Official Ballot Language, Ohio Secretary of State. Accessed December 21, 2006.
  41. ^ Ohio Constitution, Article XV, section 11. Accessed December 21, 2006.
  42. ^ General Election, November 2, 2004, Summary Results, Oklahoma State Election Board. Accessed December 22, 2006.
  43. ^ Oklahoma Constitution, Article II, section 35, at domawatch.org. Accessed December 22, 2006.
  44. ^ Utah 2004 canvass amendments, 2004 General Election Results, State of Utah Elections Office. Accessed December 15, 2006.
  45. ^ Utah State Constitution, Article I, section 29, Utah Legislature. Accessed December 15, 2006.
  46. ^ Election Statistics, Kansas Secretary of State. Accessed December 22, 2006.
  47. ^ Gay marriage ban in public's hands, by Scott Rothschild, Lawrence Journal-World, February 3, 2005. Accessed December 22, 2006.
  48. ^ Kansas Constitution, Article XV, section 16. Accessed December 22, 2006.
  49. ^ a b 2005 Constitutional Amendment Election, Texas Secretary of State, Elections Division. Accessed December 22, 2006.
  50. ^ Texas Constitution, Article I, section 32. Accessed December 22, 2006.
  51. ^ DOMAwatch.org - Alabama Alliance Defense Fund. 2006. Accessed January 6, 2007.
  52. ^ a b "AMENDMENT 774 RATIFIED", Alabama State Legislature. Accessed January 6, 2006.
  53. ^ Article III, Section 28. Idaho Constitution. Idaho State Legislature. Accessed January 6, 2007.
  54. ^ a b p.24 No.54 edition of the Journal of the Senate of the State of South Carolina. State of South Carolina. April 2005. Accessed January 6, 2007.
  55. ^ House Joint Resolution 1001 South Dakota Legislature 2005. Accessed January 6, 2007.
  56. ^ "DOMAwatch.org - Wisconsin" Alliance Defense Fund. 2006. Accessed January 6, 2007.
  57. ^ a b Initiative Information - Florida Marriage Protection Amendment, Florida Department of State, Division of Elections. Accessed November 11, 2008.
  58. ^ Waggoner, Martha (May 8, 2012). "NC approves amendment on gay marriage". Associated Press. Google News. http://www.google.com/hostednews/ap/article/ALeqM5jMc52sVsFTFWWyrhx6CZZlko3Omg. Retrieved May 8, 2012. 
  59. ^ "Session Law 2011-409, Senate Bill 514" (PDF). North Carolina General Assembly. 2011. http://www.ncleg.net/Sessions/2011/Bills/Senate/PDF/S514v5.pdf. Retrieved May 8, 2012. 
  60. ^ 2004 General Election Results, Michigan Department of State. Accessed December 19, 2006.
  61. ^ Michigan State Constitution, Article I, section 25, Michigan Legislature. Accessed December 19, 2006.
  62. ^ Opinion of the Supreme Court of Michigan, Michigan Supreme Court. Accessed May 10, 2009.
  63. ^ a b Official Results, 2006 election, Virginia State Board of Elections. Accessed December 30, 2006.
  64. ^ Proposed Constitutional Amendment, Article I, Section 15-A, from "November 2006 Proposed Amendments", Virginia State Board of Elections. Accessed December 30, 2006.
  65. ^ "Toward a Theory of Constitutional Amendment" Lutz, Donald S. in American Political Science Review, Vol. 88, No. 2 (Jun., 1994), pp. 355-370. Page 360. Table 3. Covers State Constitutions active from 1970-9. Available through JSTOR (membership required)

External links