Defense of marriage amendment is a term used to describe two different kinds of U.S. state constitutional amendments. The first prevents a state from legalizing same-sex marriage, civil unions and domestic partnerships, while the second kind bans only same-sex marriage. These bans are enacted at the constitutional level, and thus can only be changed by modifying the respective state constitution. The term "defense of marriage" is generally associated with conservative activists who favor such amendments. As of November 26, 2006, 27 states had approved such amendments.
While "defense of marriage amendment" is the most common term, titles vary among states. Alabama's amendment is called the "Sanctity of Marriage Amendment," for example. State defense of marriage amendments are different from the proposed Federal Marriage Amendment, which would ban same-sex marriage in every U.S. State, and the Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriages. Several states have also adopted their own version of a defense of marriage act, which statutorily prevents recognition of same-sex marriages.
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 Hawaii State Supreme Court ruled in Baehr v. Lewin that refusing to grant marriage licenses to same-sex couples was sex-discrimination under that state's constitution. However, the court did not immediately order the state to begin issuing marriage licenses to same-sex couples; rather, it stayed its ruling and ordered the state to justify its sex discrimination. This ruling galvanized opposition to same-sex marriage in the state and around the country and led to the very first "defense of marriage" amendment to a state constitution. Yet this first amendment differed from those that were to follow in that it did not write a ban on same-sex marriage into the state's constitution; rather, it allowed the state legislature to enact such a ban. In November 1998, 69% of Hawaii voters approved the amendment, and the state legislature exercised its power to ban same-sex marriage. For the next several years, few states passed defense of marriage amendments. After it became clear that same-sex marriage was not to take place in Hawaii, many opponents of same-sex marriage did not feel that such unions would be legalized, and therefore devoted less attention to the issue. Thus, after the Hawaii vote, only three such amendments were proposed from 1998-2003, in Alaska, Nebraska, and Nevada. All passed. Yet in November 2003, the Massachusetts Supreme Judicial Court handed down Goodridge v. Department of Public Health, legalizing same-sex marriage in that state. Many 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 writing same-sex marriage bans into state constitutions themselves. The following year, eleven "marriage protection amendment" referendums were placed on state ballots.
Such amendments were advocated in response to the legalization of same-sex marriage in other jurisdictions, notably Canada and Massachusetts.
Some amendments and some proposed amendments forbid a state from recognizing even non-marital civil unions and domestic partnerships, while others explicitly allow for same-sex unions that are not called "marriage."
The amendments have two main purposes:
Some proponents of such amendments fear that states will be forced to recognize same-sex marriages celebrated in Massachusetts. They point 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 argue that state constitutional amendments will 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)). They argue that if the full faith and credit clause did require recognition of same-sex marriages, state constitutional amendments would be trumped by the federal constitution due to the supremacy clause.
State referendums on defense of marriage amendments have been used as a "get-out-the-vote" tactic by Republicans and social conservatives. 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 as 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. President George W. Bush's close political consultant, Karl Rove, has been an enthusiastic proponent and organizer of defense of marriage legislation.
After the 2006 general elections some activists argued that defense of marriage amendments 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 gay marriage unconstitutional. Nevertheless, that same election saw 7 such amendments pass; these included bans on civil unions as well as Virginia's amendment, which goes still further.
Nebraska is one of the states that added an amendment to its constitution to reinforce existing statutes defining marriage between one man and one woman. The amendment passed by a vote of 70 to 30 percent. In May 2005, a Circuit judge ruled the state constitutional amendment violates the United States Constitution. In July 2006, the Eighth Circuit reversed his ruling, reinstating the ban.
In Ohio a suit was filed seeking to prevent a state university from according its employees domestic partner benefits. It was thrown out, the judge having ruled that the plaintiff lacked standing.
In Tennessee, groups sought to keep the amendment from reaching the ballot, though their efforts ultimately failed. On April 21, 2005, a lawsuit was filed by the American Civil Liberties Union of Tennessee, the Tennessee Equality Project, and other plaintiffs, claiming that the amendment had not been published in a timely manner between legislative sessions as the state constitution required; specifically, that its newspaper publication had occurred only four months prior to the legislative election in November 2004 rather than the required six. This suit was dismissed at the appellate court level in March 2006 on the ground that the legislature's intent to put the amendment before voters in November 2006 was widely reported in the media, meeting this requirement in spirit if not in letter. This decision was in turn appealed to the Tennessee Supreme Court. The Tennessee Supreme Court rejected the ACLU's case in July 2006, stating that the plaintiffs did not show adequate standing to bring the lawsuit, thereby clearing the way for the amendment to appear on the November ballot.
In Colorado, the United States Supreme Court invalidated the amendment as overly-broad in Romer v Evans.
Most of the defense of marriage amendments ban civil unions as well as same sex marriage.
Two defense of marriage amendments differ greatly from all others: Hawaii's and Virginia's. The former gives the Hawaii state legislature the authority to ban same-sex marriages but does not explicitly make such unions unconstitutional. Virginia's amendment not only bans same-sex marriage and civil unions, but arguably renders any state recognition of private contracts entered into by unmarried couples unconstitutional.
See List of defense of marriage amendments to U.S. state constitutions by type for a more detailed list.
The following table shows all popular vote results on state constitutional amendments banning same-sex marriage, or, in the case of Hawaii, granting the legislature authority to ban same-sex marriage.
|State||Date||Yes vote||No vote||Final outcome|
|Alaska||1998||68% (152,965)||32% (71,631)||Yes|
|Hawaii||1998||69% (285,384)||31% (117,827)||Yes|
|Nevada||2002||67% (337,183)||33% (164,555)||Yes|
|Montana||2004||67% (295,070)||33% (148,263)||Yes|
|Oregon||2004||57% (1,028,546)||43% (787,556)||Yes|
|Utah||2004||66% (593,297)||34% (307,488)||Yes|
|Arizona||2006||49% (574,332)||51% (607,769)||No|
|Colorado||2006||56% (865,126)||44% (674,030)||Yes|
|Idaho||2006||63% (282,301)||37% (163,408)||Yes|
|Nebraska||2000||70% (450,073)||30% (189,555)||Yes|
|Missouri||2004||71% (1,055,771)||29% (439,529)||Yes|
|Michigan||2004||59% (2,698,077)||41% (1,904,319)||Yes|
|North Dakota||2004||73% (223,572)||27% (81,716)||Yes|
|Ohio||2004||62% (3,329,335)||38% (2,065,462)||Yes|
|Oklahoma||2004||76% (1,075,216)||24% (347,303)||Yes|
|Kansas||2005||70% (414,106)||30% (178,018)||Yes|
|South Dakota||2006||52% (172,242)||48% (160,173)||Yes|
|Wisconsin||2006||59% (1,260,554)||41% (861,554)||Yes|
|Louisiana||2004||78% (618,928)||22% (177,103)||Yes|
|Arkansas||2004||75% (753,770)||25% (251,914)||Yes|
|Georgia||2004||76% (2,454,912)||24% (768,703)||Yes|
|Kentucky||2004||75% (1,222,125)||25% (417,097)||Yes|
|Mississippi||2004||86% (957,104)||14% (155,648)||Yes|
|Texas||2005||76% (1,718,513)||24% (536,052)||Yes|
|Alabama||2006||81% (734,746)||19% (170,399)||Yes|
|South Carolina||2006||78% (825,766)||22% (232,978)||Yes|
|Tennessee||2006||81% (1,419,434)||19% (327,536)||Yes|
|Virginia||2006||57% (1,328,134)||43% (998,483)||Yes|
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