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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.
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. . 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 Nevada, Nebraska and Alaska. 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. The following year, eleven "marriage protection amendment" referenda were placed on state ballots. 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: 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. Conservative mobilization State referenda on defense of marriage amendments have been used as a "get-out-the-vote" tactic by Republicans and social conservatives. States that have passed 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, * 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. 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). States with proposed amendments On January 24, 2006, Pennsylvania State Representative Scott Boyd (R-Lancaster) proposed an amendment to the Pennsylvania constitution defining marriage between one man and one woman. The language of the proposed constitutional amendment would also prevent the legislature or judiciary from creating civil unions. On 2006-06-06, the House of Representatives approved the amendment by a vote of 136-61.* As of June 2006, the amendment still needed approval from the Pennsylvania State Senate and approval by both the House of Representatives and the Senate in the next legislative session before it could go to a voter referendum. Tennessee also has a proposed amendment which will be on the November 2006 ballot, having recently survived a court challenge on the basis that it was not published in accordance with constitutional requirements. In total, eight states have defense of marriage amendments on their ballots in the November 2006 election. See also | ||||||||
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