Defense of marriage amendment
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| Same-sex marriage |
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| Performed nationwide in |
| Netherlands (2001) |
| Belgium (2003) |
| Spain (2005) |
| Canada (2005) |
| Performed statewide in |
| Massachusetts, USA (2004) |
| To be performed in |
| South Africa (by 1 Dec 2006) |
| Debate in other countries and regions |
| Aruba |
| Australia |
| Austria |
| China |
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| Latvia |
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| Portugal |
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| United Kingdom |
| United States: CA CT MD NY NJ OR WA |
| See also |
| Civil union |
| Registered partnership |
| Domestic partnership |
| Federal Marriage Amendment |
| Timeline of same-sex marriage |
| Listings by country |
Defense of marriage amendments are U.S. state constitutional amendments preventing a state from legalising same-sex marriage. The term is generally associated with conservative activists favoring such an amendment. As of early November 2006, 20 states had approved such amendments.[1]
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[edit] History
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 coutries legalized civil unions, and in 1993 the Hawaii Supreme Court ruled in Baehr v. Lewin that refusing to grant marriage licences to same-sex couples was sex-descrimination under that state's constitution. [2] However, the court did not immediately order the state to begin issuing marriage licences to same-sex couples; rather, it stayed its ruling and ordered the state to justify its sex descrimination.[citation needed] This ruling galvinized 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.[citation needed] 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 if it so chose.[3] In November 1998, 69% of Hawaii voters appoved the amendment, and the state legislature excercised its power to ban same-sex marriage. [3][4]. 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.[citation needed] Thus, after the Hawaii vote, only three such amendments were proposed from 1998-2003, in Nevada, Nebraska and Alaska.[5] All passed. Yet in November 2003, the Massachusetts Supreme Court handed down Goodridge v. Department of Public Health, legalising 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.[citation needed] The following year, eleven "marriage protection amendment" referenda were placed on state ballots.
[edit] Purpose and motivation
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 recongizing 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:
- Prevent the state's courts from interpreting the state constitution to permit or require legalization of same-sex marriage
- Prevent the state's courts from recognizing same-sex marriages that were legally celebrated in other states or other countries
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. However, 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. (ยง134 of the First Restatement of Conflicts, on Marriage and Legitimacy (1934)). 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.
[edit] Conservative mobilization
State referenda on defense of marriage amendments have been used as a "get-out-the-vote" tactic by Republicans and social conservatives.[6] [7] 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.[6] [8]
[edit] States that have passed amendments
As of November 2006, twenty-seven states have passed defense of marriage amendments.
Texas became the 19th state to amend its state constitution to define marriage as the union of only one man with only one woman. (National Conference of State Legislatures)
In 2004 the state of Ohio added to its state ballot a proposed amendment to the state constitution defining a legal marriage as the union of only one man with only one woman. It was passed and is now part of the Ohio state constitution. (Ohio Constitution)
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. However, on May 12, 2005 Joseph Bataillon, [1] Chief Judge of the U.S. District Court of Nebraska, ruled the state constitutional amendment violates the U.S. Constitution, citing that "the intent and purpose of the amendment is based on animus against this class [gay, lesbian, and homosexual couples]." (Citizens for Equal Protection v. Bruning). In July, 2006, however, the Supreme Court of Nebraska reinstated the ban.
[edit] States that have voted on amendments
The following table shows all popular vote results regarding state constitutional amendments banning same-sex marriage, and in some cases civil unions and domestic partnerships. The Hawaii amendment is different in that it does not ban same-sex marriage, but grants the legislature authority to ban same-sex marriage (which the legislature had already done).
| State | Date |  Yes vote |
 No vote |
Final outcome | |
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| Far West: | |||||
| Alaska | November 1998 | 68% (152,965) | 32% (71,631) | Yes |
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| Hawaii | November 1998 | 69% (285,384) | 31% (117,827) | Yes |
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| West: | |||||
| Nevada | November 2002 | 67% (337,183) | 33% (164,555) | Yes |
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| Montana | November 2004 | 67% (295,070) | 33% (148,263) | Yes |
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| Oregon | November 2004 | 57% (1,028,546) | 43% (787,556) | Yes |
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| Utah | November 2004 | 66% (593,297) | 34% (307,488) | Yes |
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| Arizona | November 2006 | 49% (574,332) | 51% (607,769) | No |
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| Colorado | November 2006 | N/A | N/A | Yes |
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| Idaho | November 2006 | 63% (282,301) | 37% (163,408) | Yes |
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| Midwest: | |||||
| Nebraska | November 2000 | 70% (450,073) | 30% (189,555) | Yes |
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| Missouri | August 2004 | 71% (1,055,771) | 29% (439,529) | Yes |
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| Michigan | November 2004 | 59% (2,698,077) | 41% (1,904,319) | Yes |
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| North Dakota | November 2004 | 73% (223,572) | 27% (81,716) | Yes |
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| Ohio | November 2004 | 62% (3,329,335) | 38% (2,065,462) | Yes |
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| Oklahoma | November 2004 | 76% (1,075,216) | 24% (347,303) | Yes |
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| Kansas | April 2005 | 70% (414,106) | 30% (178,018) | Yes |
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| South Dakota | November 2006 | 52% (172,242) | 48% (160,173) | Yes |
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| Wisconsin | November 2006 | 59% (1,260,554) | 41% (861,554) | Yes |
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| South: | |||||
| Louisiana | September 2004 | 78% (618,928) | 22% (177,103) | Yes |
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| Arkansas | November 2004 | 75% (753,770) | 25% (251,914) | Yes |
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| Georgia | November 2004 | 76% (2,454,912) | 24% (768,703) | Yes |
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| Kentucky | November 2004 | 75% (1,222,125) | 25% (417,097) | Yes |
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| Mississippi | November 2004 | 86% (957,104) | 14% (155,648) | Yes |
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| Texas | November 2005 | 76% (1,718,513) | 24% (536,052) | Yes |
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| Alabama | June 2006 | 81% (734,746) | 19% (170,399) | Yes |
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| South Carolina | November 2006 | 78% (825,766) | 22% (232,978) | Yes |
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| Tennessee | November 2006 | 81% (1,414,562) | 19% (325,297) | Yes |
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| Virginia | November 2006 | 57% (1,328,134) | 43% (998,483) | Yes |
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[edit] See also
[edit] References
- ^ "Same Sex Marriage" National Conference of State Legislatures 2006. Last updated October 2006. Accessed 3 November 2006
- ^ "Special Report: 'I do'" Honolulu Star-Bulletin January 22, 1997
- ^ a b "Homosexual (same-sex) marriages in Hawaii" Robinson, B.A.Religioustolerance.org. 1997-JUL-11, updated 2001-DEC-2
- ^ "Same-sex marriage ballot measures: Hawaii gives legislature power to ban same-sex marriage" AllPolitics. CNN.com. November 3, 1998
- ^ In Alaska, a same-sex couple had sued for marriage rights, and had seen several rulings in their favor. The Alaska defense of marriage amendment arose in an effort to prevent the ruling from taking effect. See "Homosexual (same-sex) marriage in Alaska" Robinson, B.A. Religioustolerance.org. 2002. (last update 2005-APR-21). accessed 3 November 2006.
- ^ a b Andrea Stone, Drives to ban gay adoption heat up in 16 states, USA Today, February 20, 2006
- ^ Pauline J. Chang, Wisconsin Conservatives Gear Up For Marriage Vote with 'Celebration', The Christian Post, October 25, 2006
- ^ Joe Hanel, Elite donors fuel ballot initiatives, The Durango Herald, October 29, 2006
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