Today in 2004: Eleven states pass amendments against same-sex marriage

November 2, 2012

Today in Legal HistoryOver the past decade and a half, the same-sex marriage debate has seen more than its share of twists and turns.

In 1996, U.S. Congress passed the Defense of Marriage Act (DOMA), which not only prohibited federal recognition of same-sex marriages regardless of what name they went by, but also created an exception to the Constitution’s Full Faith and Credit Clause that allows states to completely disregard marriage licenses issued to same-sex couples in other states.

At this point, same-sex marriages were not recognized by any state in the U.S., so DOMA had very little impact legally in 1996.

When Massachusetts legalized same-sex marriage in May of 2004, however, the game changed.

Since May 2004, DOMA actually started to do what its legislators intended: prevent the federal government from legally recognizing same-sex marriages solemnized in individual states, and allow other states to refuse to recognize such marriages.

Apparently, though, opponents of same-sex marriage did not believe that DOMA – along with the laws in every state prohibiting the recognition of same-sex marriage – were enough to prevent the recognition of same-sex marriage coming to their home state.

Thus, although 2004 saw the legalization of same-sex marriages for the first time in U.S. history, it also marked the beginning of a trend in the opposite direction: state ballot initiatives prohibiting same-sex marriage.

This trend began on November 2, 2004, when, during the 2004 presidential election, 11 states passed amendments to their constitutions barring recognition of same-sex marriage: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio, Oregon, and Utah.

True, this was not the first time that such constitutional amendments were passed by popular vote.

Earlier such ballot initiatives were passed in Alaska in 1998, Nebraska in 2000, and Nevada in 2002.

However, 2004 was the beginning of a concerted nationwide effort on the part of same-sex marriage opponents to pass such ballot measures, and was far and away the year in which the greatest number of these initiatives passed.

Since then, two such initiatives were passed in 2005 (in Kansas and Texas), eight initiatives in 2006 (in Alabama, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin), and three in 2008 (in Arizona, California, and Florida).

California’s – Proposition 8 – is an interesting one because it revoked an existing right for same-sex couples to marry.

That trait led to Prop 8’s invalidation earlier this year at the hands of the Ninth Circuit Court of Appeals (you can read this post for more), and the case is currently awaiting the Supreme Court’s decision on whether it will hear the appeal from the Ninth Circuit.

In any case, Prop 8’s invalidation will likely have little impact on the amendments passed in other states, since no other state has passed its amendment at a time when same-sex marriage was legal within its own borders.

Nevertheless, as discussed in this post, the Prop 8 case is only one of many same-sex marriage cases currently seeking review before the Supreme Court.

One particularly notable case is an appeal from the Second Circuit Court of Appeals striking down Section 3 of DOMA as unconstitutional – and this case, unlike the Prop 8 appeal, could have extremely broad implications for these state constitutional amendments.


The Second Circuit ruling held that homosexuals are a “quasi-suspect class” entitled to heightened protections under the Equal Protection clause.

Section 3 only deals with federal recognition of same-sex marriages, not the aforementioned Full Faith and Credit exception (which is dealt with in Section 2).

It would appear, then, at first blush that these state constitutional prohibitions will remain intact should the Supreme Court agree to hear and then affirm the Second Circuit’s decision.

But that isn’t the case.

If the Supreme Court affirms the Second Circuit’s finding of homosexuals being a quasi-suspect class, which, given Justice Kennedy’s past support of homosexual rights (see Romer v. Evans and Lawrence v. Texas), is a very distinct possibility, these state amendments will quickly find themselves in the same historical trash bin in which anti-miscegenation laws currently reside.

Here’s how:

The immediate impact of the decision would not be felt by these state constitutional amendments.

However, legal challenges against Section 2 of DOMA would arise almost instantaneously after the decision, since the U.S. government would have to show an “important” interest that is “substantially related” to allowing states to discriminate.

Considering that the government’s purported justifications for DOMA’s Section 3 likely closely mirror its justifications for Section 2, this would be a burden that the government couldn’t meet, and Section 2 would get gutted.

Without it, states would be required by the Full Faith and Credit Clause to give equal weight to a marriage license issued in another state – even if it’s a same-sex marriage.

Since the U.S. Constitution trumps every individual state constitution, these state constitutional amendments would have no effect in this scenario – and would likely be universally struck down.

Although some states may still refuse to issue marriage licenses to same-sex couples, every state would be required to recognize those marriages formalized in other states.

In short, same-sex marriages would have the full legal recognition across the U.S. that heterosexual marriages now enjoy.

And that would effectively be the end of the rollercoaster of a debate on same-sex marriage referenced in the first sentence of this post.