Voters in three Western states will consider ballot measures this November to repeal marriage amendments previously approved by voters. These measures would add redundant legal fortifications to same-sex marriage in anticipation of the day when the current cultural juggernaut consumes its final momentum.
The state ballot measures would have no immediate effect on policy, due to the double-layered federal protection that same-sex marriage currently enjoys. The Supreme Court rendered state constitutional provisions defining marriage as one man and one woman unenforceable when its Obergefell v. Hodges (2015) decision unilaterally legalized same-sex marriage. Then in 2022, the U.S. Congress passed the so-called Respect for Marriage Act, which requires all states to recognize any marriage recognized in any other state.
However, pro-LGBTQ+ activists want to remove the offending language from state constitutions anyway. The three states where voters will face ballot measures this November are California, Colorado, and Hawaii.
California
In the 2008 election, 52.3% of California voters approved Proposition 8. According to the official ballot summary, the proposition “changes the California Constitution to eliminate the right of same-sex couples to marry in California” and “provides that only marriage between a man and a woman is valid or recognized in California.” The proposition responded to the California Supreme Court’s ruling on May 15, 2008, (In re Marriage Cases) that legalized same-sex marriage.
The proposition amended the California Constitution by adding Article I, Section 7.5, which states, “Only marriage between a man and a woman is valid or recognized in California.” The amendment survived a constitutional challenge in state court on June 17, 2009, (Strauss v. Horton) but was ruled unconstitutional under the federal constitution in the Northern District of California on Aug. 4, 2010, (Perry v. Schwarzenegger), five years before the Obergefell decision.
In the 2024 election, California voters will consider Proposition 3, which “amends California Constitution to recognize fundamental right to marry, regardless of sex or race” and “removes language in California Constitution stating that marriage is only between a man and a woman.”
Colorado
In the 2006 election, 55% of Colorado voters approved Amendment 43. The ballot question authorized “an amendment to the Colorado constitution … specifying that only a union of one man and one woman shall be valid or recognized as a marriage in Colorado.” As a result, Section 31 was added to the Colorado Constitution, stating that “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”
In the 2024 election, Colorado’s Amendment J asks voters, “Shall there be an amendment to the Colorado constitution removing the ban on same-sex marriages?”
Hawaii
In the 1998 election, 69.2% of Hawaii voters approved Amendment 2, which asked, “Shall the Constitution of the state of Hawaii be amended to specify that the Legislature shall have the power to reserve marriage to opposite-sex couples?” The amendment added Article I, Section 23 to the Hawaii Constitution, which states, “The legislature shall have the power to reserve marriage to opposite-sex couples.”
In the 2024 election, Hawaii’s Ballot Question #1 asks voters, “Shall the state constitution be amended to repeal the legislature’s authority to reserve marriage to opposite-sex couples?”
Status in Other States
One other state has previously repealed a marriage amendment. In the 2020 election, 62.43% of Nevada voters approved Ballot Question 2. The measure repealed “an existing provision that only a marriage between a male person and a female person may be recognized and given effect in Nevada” and required that state entities “must recognize marriages of and issue marriage licenses to couples regardless of gender” with a narrowly constructed conscience protection for “religious organizations and members of the clergy.”
According to Ballotpedia, 26 other states still have constitutional amendments on record that define “marriage as between one male and one female.”
Polling Changes
These attempts to establish same-sex marriage in state constitutions may reflect fears that support for same-sex marriage has peaked. While a supermajority (69%) of Americans still believe same-sex marriage should be legal, support among Republicans has slipped below 50%, according to a Gallup survey released in June 2024. Support for same-sex marriage among Republicans dropped from 55% in 2021 and 2022 to 49% in 2023 and 46% in 2024, a 9-percentage-point fall over two years.
Such a sudden and precipitous drop may have spooked same-sex marriage activists into action by suggesting that future support for same-sex marriage is not guaranteed. If they are to establish a constitutional endorsement of same-sex marriage, their best chance is now, while they have strong support.
Future Implications
But ballot measures like California’s have the potential to go much further. “Rather than simply repealing the definition of marriage as one man and one woman, Proposition 3 would have consequences far beyond the legal realm,” Jonathan Keller, president and CEO of the California Family Council, told The Washington Stand.
The California Family Council argued that the proposition “opens the door to potentially enshrining … other non-traditional relationships into state law … paving the way for the normalization of polygamy, child marriage, and even incestuous relationships.”
“It would send a powerful message about the nature of marriage and the values that underpin our society,” said Keller. “For centuries, marriage has been rooted in the biological realities of procreation and child-rearing. By redefining marriage as a purely individual right, Proposition 3 would sever the connection between marriage and these fundamental purposes and endanger families, children, and society as a whole.”
