Marriage Equality Is Back on the Ballot  

Decades after it started, the movement to protect marriage equality at the state level is gaining renewed urgency. 

In 2004, the nation was embroiled in a political and cultural clash over whether people of the same sex should be allowed to marry — and the “traditional marriage” set was winning. Progress toward marriage equality had galvanized anti-LGBTQ+ forces. In late 2003, Massachusetts’s supreme court held that barring same-sex couples from marrying violated state constitutional principles of equality and respect for individual autonomy. Soon after, in February 2004, the city of San Francisco started performing same-sex marriages. 

Within weeks, then-President George W. Bush came out in support of a federal constitutional amendment limiting marriage to one man and one woman, which he said was needed to protect “the most fundamental institution of civilization.” Voters in 13 states went on to amend their state constitutions that year to forbid marriage between people of the same sex; by 2008, 29 had. Some commenters credited the issue with helping Bush win reelection. Sixty percent of Americans opposed same-sex marriage, a Pew Research Center poll found.

“Not since the days of Jim Crow segregation has our nation faced the prospect of discrimination written into law in such a shameful way,” David Tseng, executive director of Parents, Families and Friends of Lesbians and Gays, told the New York Times in 2004.

Then, in 2015, the Supreme Court ruled in Obergefell v. Hodges that the federal Constitution guaranteed marriage equality, seemingly settling the issue. A jubilant crowd outside the courthouse chanted, “Love has won!”

Now, marriage equality is back on the ballot. This year, voters in California, Colorado, and Hawaii will decide whether to strike anti–marriage equality provisions from their constitutions. While the amendments would have little effect if passed now, their proponents are bracing for the future.

For those who still naively believe in the power of Supreme Court precedent, these ballot measures may seem pointless. Obergefell stands with civil rights cases of the 1950s and 1960s as a landmark ruling. But when the Court held two years ago in Dobbs v. Jackson Women’s Health Organization that the Constitution no longer protected abortion access, it made clear that it was willing to roll back rights. Justice Clarence Thomas wrote separately that the Court should not stop at abortion.

“In future cases, we should reconsider all of this Court’s substantive due process precedents,” he wrote — including, specifically, Obergefell. “We have a duty to correct the error,” he declared. Justice Elena Kagan recently warned in an interview that she saw same-sex marriage, along with protections for contraception and interracial marriage, as vulnerable under Dobbs’s reasoning. 

If the Court were to announce that the U.S. Constitution no longer protects same-sex marriage, the issue of marriage equality would return to the states, just like abortion rights did post-Dobbs. Constitutional amendments limiting marriage to one man and one woman remain on the books in dozens of states. These provisions could take on renewed force — much like some 19th-century “zombie laws” restricting abortion that became activated after the Dobbs decision. 

The three proposed amendments on the ballot this year differ in significant ways. The California amendment would remove language defining marriage as between one man and one woman and add that “the right to marry is a fundamental right.” The measure in Colorado would repeal existing discriminatory language, leaving the state’s constitution silent on marriage equality. And the Hawaii measure would repeal the legislature’s authority to “reserve marriage to opposite sex couples.” 

State lawmakers and other proponents of these measures highlight Dobbs as a harbinger of rights contraction. A California senate committee noted that the endurance of federal marriage equality was uncertain, “not because the reasoning underlying Obergefell and marriage equality is dubious or unclear on the issue, but because courts can change.” 

“And, in fact, the United States Supreme Court already has,” the committee went on. Three of the justices in Obergefell’s 5–4 majority are no longer on the Court. 

Prescient legislators and citizens in Nevada saw the danger of zombie amendments banning same-sex marriage long before the Supreme Court confirmed its willingness to roll back rights, with multiple Nevadans voicing concern about Obergefell’s vulnerability during a 2017 legislative debate over a ballot measure to repeal the state’s anti–marriage equality provision. Nevada voters eventually approved the amendment by over 60 percent in 2020. 

So far, Nevada is the only state to have amended its constitution to repeal an anti–marriage equality provision. Recent efforts to repeal statutory or constitutional same-sex marriage bans have failed in Indiana, Florida, Utah, and Virginia. 

People in same-sex relationships can take some comfort in the Respect for Marriage Act, which Congress passed in 2022 post-Dobbs to require all states to respect same-sex marriages performed in any other state. But the legislation does not mandate that states allow same-sex couples to marry within their borders.

When California in 2008 passed its anti–marriage equality amendment that’s now up for repeal, then-U.S. Sen. Barbara Boxer said, “The fight for equality goes on and on.” Although the modern movement for LGBTQ+ rights has seemingly shifted to issues around gender identity and gender expression, as demonstrated by a marked increase in anti-trans laws, the battle for marriage equality is far from over. 

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and a senior counsel in the Judiciary Program at the Brennan Center for Justice.

Morgan Munroe is a student at NYU Law School who is participating in the Brennan Center’s Public Policy Advocacy Clinic.

Suggested Citation: Kathrina Szymborski Wolfkot & Morgan Munroe, Marriage Equality Is Back on the Ballot, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 21, 2024), https://statecourtreport.org/our-work/analysis-opinion/marriage-equality-back-ballot