by Peter Sprigg
May 18, 2012
In the wake of the passage of North Carolinas marriage amendment on May 8, by an overwhelming 61%-39% margin, there have been a number of media reports on the state of marriage law in the fifty states, and how many states have taken action to prevent the issuances of marriage licenses to couples of the same sex. The numbers reported in these stories have sometimes been contradictory, and this may lead to some confusion. With this post, I will try to clarify where the states now stand on this issue.
First, lets look at states that have amended their state constitutions in such a way as to prevent the legalization of same-sex marriage in those states. Including North Carolina, there are thirty (30) states in which the definition of marriage as the union of one man and one woman has been directly enshrined in the states constitution in explicit language. In these thirty states, neither the legislature nor the state courts have the power to legalize same-sex marriage—at least, not unless and until the people of those states vote to amend their constitutions again to repeal the current provisions.
Opponents of the marriage amendment in North Carolina made much of the fact that the amendment on the ballot included not only language defining the word marriage, but also additional language intended to make certain that the state would not create some sort of quasi-marital status under another name (such as civil unions or domestic partnerships) to give some or all of the traditional legal benefits of marriage to same-sex couples.
This provision was described by opponents as though it was a radical and extreme provision unique to the North Carolina amendment. The truth is exactly the opposite—in fact, a clear majority of the states which have adopted amendments to define marriage (twenty of the thirty) have used what is sometimes called a strong or two-sentence amendment to prevent civil unions and domestic partnerships, as well as same-sex marriage. The North Carolina amendment represented the norm, not the exception.
The other ten states have simpler amendments sometimes described as single-sentence, or definition-only amendments, which address only the definition of civil marriage itself. (The pro-homosexual lobby Human Rights Campaign, which usually tracks state laws very closely, has inaccurately omitted Kansas from the list of states with strong marriage amendments.)
Some opponents of the North Carolina amendment argued that it could prevent even private companies from offering domestic partner benefits, or prevent same-sex partners from even entering into private contracts with one another. Similar charges have been made about two of the strong amendments already adopted, those inMichigan and Virginia. These charges are plainly false—the amendments are intended only to bind state and local governments, not private entities (Virginias amendment refers explicitly to this Commonwealth or its political subdivisions). North Carolinas amendment language closely resembles that of Idaho, and added language in the Michigan and Virginia amendments was intended to forestall any effort to evade the amendments intent, which was to ensure that same-sex relationships would not be treated as equivalent or comparable to opposite-sex marriages in any way under the law.
Although thirty states have amended their constitutions to define marriage as the union of a man and a woman, there are actually thirty-one states that have amended their constitutions in an effort to prevent same-sex marriage. The thirty-first (in this analysis) was actually one of the first chronologically. The prospect of legalizing same-sex marriage was not taken very seriously until the early 1990s, when a court in Hawaii gave indications that it might be the first to order legalization of same-sex marriage.
The people responded by amending their constitution—but the Hawaii amendment did not actually place a definition of marriage in the text of the constitution. Instead, the Hawaii amendment reserved to the legislature the power to define marriage as the union of one man and one woman (which they did, by statute). So in Hawaii, like the other states with marriage amendments, state courts have no power to change the definition of marriage. However, unlike the other thirty states, Hawaii has left the legislature with the freedom to legalize same-sex marriage, if they should choose to do so. (In my writings, I have usually not counted Hawaiis as a true marriage amendment because it did not fix the definition of marriage in the constitutional text. However, it certainly counted as a victory in the fight to prevent redefinition of marriage.)
That brings us to 31; but you may also have heard pro-family spokesmen declare that after North Carolina, 32 out of 32 states that have voted on the issue have voted to uphold the definition of marriage as the union of a man and a woman. Where do they get 32?
In 2009, Maines legislature passed a bill to legalize same-sex marriage. However, opponents of the bill were able to place it on the ballot, and before it ever took effect, the voters repealed it in a referendum sometimes referred to as a peoples veto. This was another victory for one-man-one-woman marriage, but it did not amend the states constitutionit merely removed the statutory language adopted by the legislature. (Because Maine does not have an actual marriage amendment, advocates of same-sex marriage there—apparently believing that public opinion has shifted in their favor since 2009—have been pushing for another referendum to restore same-sex marriage.)
To further confuse things—while the pro-family claims of a 32-state winning spree at the ballot box are accurate, this does not mean that traditional marriage has won every time marriage has been on the ballot. There is one state, Arizona, which has voted on marriage amendments twice. The first time, in 2006, voters weighed in on a proposed strong or two-sentence amendment which would have prevented the state from establishing civil unions or domestic partnerships as well as same-sex marriage. This amendment was defeated—ironically, because opponents drew attention to its potential impact on opposite-sex couples, not same-sex ones. (Social Security imposes an unfortunate marriage penalty upon widowed recipients of survivor benefits if they choose to marry again. This has provided an incentive for some seniors—a significant population in the popular retirement state of Arizona—to cohabit rather than re-marry, and some states and localities have taken this into account by creating domestic partnerships for same-sex couples and opposite-sex seniors.) In 2008, however, voters adopted a revised, one-sentence, definition-of-marriage-only amendment, thus placingArizona ultimately in the victory column.
There is one additional state-wide referendum that could be counted as a 33rd victory at the polls for the man-woman definition of marriage—even though the word marriage did not appear on the ballot. I refer to the 2010 judicial retention election in Iowa, in which three of the state Supreme Court justices who had voted to impose same-sex marriage on that state in 2009 were removed from office. This was unprecedented in the history of the state, and few observers doubt that the marriage case was the reason for it.
The 30or 31states with some form of marriage amendment should not be considered the only ones that have acted to protect the definition of marriage, however. Only six states (plus the District of Columbia) currently grant marriage licenses to same-sex couples, so the number of states which define marriage as the union of a man and a woman is currently 44, not just 30.
In two of those states (Washington and Maryland), the legislatures this year voted to legalize same-sex marriage, but those laws have not taken effect, and pro-family forces in both states are attempting to place the issue on this Novembers ballot in hope of achieving a peoples veto like the one that occurred in Maine. Even with Washington and Maryland excluded based on a pending change in their laws, the number of states that define marriage as the union of a man and a woman is 42, not just 30.
We in the pro-family movement do not consider the social institution of marriage to be inherently stronger in states which have defined it as the union of a man and a woman in the constitution than in states which have such a definition by statutory or common law. Marriage is not stronger there—merely safer, in that an amendment has the political and legal effect of making a redefinition of marriage more difficult and thus less likely in that state in the future. Researchers wanting to compare states on the issue of same-sex marriage should compare the 42 (or, for the time being, 44) states without it to the six states which have it—rather than comparing the thirty (or 31) states with amendments to the 19 or 20 without them.
So in conclusion, lets walk through the numbers again:
Number of states in which the state constitution prevents legal recognition of same-sex marriages, civil unions, or domestic partnerships: 20
North Carolina 2012
North Dakota 2004
South Carolina 2006
South Dakota 2006
Number of states in which the state constitution defines civil marriage as the union of one man and one woman: 30
To those above, add:
Number of states which have amended their state constitutions to prevent legalization of same-sex marriage: 31
To the states above, add Hawaii amendment (1998) reserving the definition of marriage to the legislature
Number of states in which voters have upheld the definition of marriage as the union of one man and one woman in a statewide referendum: 32
To the states above, add Maines peoples veto (2009) of same-sex marriage legislation
Number of states where voters have, either explicitly or implicitly, rejected the legalization of same-sex marriage: 33
To the states above, add Iowas judicial retention election (2010), removing state Supreme Court judges who voted to impose same-sex marriage
Number of states where marriage remains the union of a man and a woman under state law: 42
Number of states which currently (May 2012) grant marriage licenses only for unions of one man and one woman: 44
Includes Washington and Maryland, where same-sex marriage legislation has been enacted but not yet taken effect.