Ballot measures could remove same-sex marriage bans from state constitutions
Voters in several states are slated to weigh in on ballot measures that would repeal unenforceable same-sex marriage bans in their respective state constitutions as the 2024 election approaches.
While referendums that would establish a right to abortion or implement pro-life protections are appearing on the ballot in 10 states, the results of several additional ballot measures will also send messages about Americans' views on social policy.
Prior to the U.S. Supreme Court's 2015 decision in Obergefell v. Hodges that established a right to same-sex marriage, voters in several states supported constitutional amendments establishing a definition of marriage as a union between one man and one woman.
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Nearly a decade after the Obergefell decision that rendered the voter-approved same-sex marriage bans unenforceable, voters in three states will decide the fate of ballot measures that would remove constitutional language upholding the traditional definition of marriage.
California
In California, where voters narrowly approved a same-sex marriage ban in 2008, Proposition 3 seeks to remove language from the state constitution that reads: "Only marriage between a man and a woman is valid or recognized in California."
If Proposition 3 is passed by voters, the California Constitution would be amended to read, "The right to marry is a fundamental right." Additionally, new language would be inserted describing "the right to marry" as consistent with "the inalienable rights to enjoy life and liberty and to pursue and obtain safety, happiness and privacy" as well as "the rights to due process and equal protection."
A poll of 1,071 likely voters conducted by the Public Policy Institute of California from Aug. 29-Sept. 9 found that 68% of respondents planned to support Proposition 3 while 31% intended to vote against it.
A survey of 1,416 voters conducted by the University of California Dornsife, the USC's Price Center for Urban Politics and Policy, California State University Long Beach and the California State Polytechnic University Pomona in January measured support for Proposition 3 at 73% while pegging opposition at 20%.
Colorado
In Colorado, where voters approved a same-sex marriage ban in 2006, Amendment J will appear on the ballot.
If passed, Amendment J would ensure the removal of constitutional language stating that "Only a union of one man and one woman shall be valid or recognized as a marriage in this state" without adding any new language to the state constitution.
Hawaii
Voters in Hawaii will decide whether to approve or reject a ballot measure that would repeal Article I, Section 23 of the Hawaii Constitution, which reads, "the legislature shall have the power to reserve marriage to opposite sex couples."
Hawaii voters approved a constitutional ban on same-sex marriage in 1998.
The push to pass language formally repealing unenforceable same-sex marriage bans from state constitutions comes amid concerns that the U.S. Supreme Court could revisit the Obergefell decision.
These concerns stem from a concurring opinion written by U.S. Supreme Court Justice Clarence Thomas in the 2022 Dobbs v. Jackson Women's Health Organization decision.
In his concurring opinion, Thomas condemned the idea of substantive process, often used as a legal justification for establishing the right to abortion that Dobbs overturned, as "legal fiction." He suggested that the justices should "reconsider all of this Court's previous due process precedents," including Obergefell, while expressing openness to examining whether "other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated," including same-sex marriage.
President Joe Biden has signed into law a measure codifying the Obergefell decision into federal law, which makes efforts to repeal unenforceable same-sex marriage bans at the state level largely symbolic.
Ryan Foley is a reporter for The Christian Post. He can be reached at: [email protected]
