What We Face at the Ballot Box

A dozen more state constitutional amendments against same-sex marriage in the offing

When Missouri voters approved a ballot measure restricting marriage to the union of one man and one woman on August 3, they were following the lead of the overwhelming majority of state legislators from both political parties.

The only disagreement was about when the vote should be held. Republicans favored November 2, hoping that the enhanced turnout by gay marriage opponents would benefit the Bush-Cheney effort to win this critical swing state, while Democrats successfully pushed for a date prior to the general election. Voter turn-out on August 3 was nearly double what would have been predicted based on past primaries, but commentators are divided over how much the marriage amendment contributed to that. The ballot also included a hotly contested Democratic gubernatorial primary, in which the incumbent was defeated, and a contentious ballot measure on gambling.

Twelve other states are considering constitutional amendments that may come to a vote between now and November 2. Ten of those have already been placed on the ballot either by state legislatures or voter initiatives officially certified.

In two states, North Dakota and Ohio, voter signatures have been submitted but the measures have not yet been formally certified for the ballot. The number of signatures submitted in Ohio scarcely exceeded the required minimum, so that initiative appears the most vulnerable to challenge. In Michigan, gay and lesbian advocates are waging a last-ditch effort to challenge signatures prior to the August 23 deadline.

All of the remaining proposals except for Louisiana’s are slated to be considered on November 2. The legislature in Louisiana opted to hold its amendment vote the same day as its open primary that selects two finalists for every office for which no one wins an outright majority on September 18. Opponents of the Louisiana amendment have filed several lawsuits that could yet block a vote September 18.

In fact, on August 13, a New Orleans state trial judge issued a restraining order against the amendment vote, subject to immediate appeal, accepting the argument that the state constitution requires that ballot questions be voted on in a “general election.” The theory behind the requirement is that general elections draw on a wider cross section of voters than primary or special elections. The appeal is still pending.

Another to the amendment is based on the state constitution’s requirement that ballot measures be restricted to a single topic. The proposed amendment reads, in part: “Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

Amendment opponents argue that this proposal unconstitutionally requires voters opposed to same-sex marriage to vote against civil unions and domestic partnerships at the same time. The group that filed this lawsuit got off on the wrong foot, however, when a trial judge ruled on August 6 that it should have been filed in Baton Rouge, the state capital, rather than New Orleans. A quick appeal of that ruling is also expected.

Louisiana is not the only state in which the proposed constitutional amendment goes beyond the simple declaration that only the union of one man and one woman can be recognized as a marriage. In fact, a majority of the pending proposals are similar to Louisiana’s. Only in Mississippi, Montana and Oregon have the proponents limited themselves to a simple declaration limiting the definition of marriage. In the other states, the proposals include some form of prohibition on any alternatives that would provide significant legal recognition for same-sex partners. Some of those states have a constitutional provision similar to Louisiana’s limiting ballot measures to a single topic, opening up an avenue for challenge.

The Ohio Constitution requires that proposed amendments have a “single general object or purpose,” which may give opponents ammunition to fight the proposal that reads: “Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”

In Kentucky, the proposed amendment reads: “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized,” despite a constitutional provision requiring a single subject for amendments.

Similarly, the Oklahoma constitutional provision limiting amendment proposals to a single subject could be used to challenge the measure before voters that reads: “Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” The Oklahoma amendment would also criminalize issuing a marriage license to a same-sex couple, making it a misdemeanor.

Georgia has no explicit constitutional requirement that ballot questions be limited to a single topic, but activists there are nonetheless considering whether they can mount an argument against the amendment based on that theory. The proposed amendment reads, in part: “No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction.”

The remaining four states—Michigan, Arkansas, Utah and North Dakota—also have amendment language that bans both gay marriage and their legal equivalents, though there seems no explicit grounds in those jurisdictions to challenge the constitutionality of such sweeping proposals.

The sudden burst of proposed constitutional amendments came in response not only to the Massachusetts Supreme Judicial Court’s ruling in November 2003, but also to the proliferation of local jurisdictions—San Francisco, Portland, Oregon, New Paltz, New York and Asbury Park, New Jersey—granting same-sex marriage licenses earlier this year.

Prior to the Massachusetts ruling, voters had approved marriage amendments in Alaska, Hawaii, Nevada and Nebraska. Of those, only the Nebraska amendment, which is being challenged in a federal lawsuit, broadly bans any legal arrangement that offers essentially the same rights as marriage. The Nebraska lawsuit, brought by Lambda Legal, contends that the amendment violates the U.S. Constitution’s 14th Amendment, and has survived the state’s initial dismissal motion.

The Alaska and Hawaii amendments were passed in response to court rulings in those states holding that same-sex couples were entitled to marry. The Alaska amendment overruled a trial judge’s decision by locking an opposite-sex definition of marriage into the state constitution. In Hawaii, the amendment did not establish a definition of marriage, but reserved to the state legislature the exclusive authority to determine who can marry, blocking the courts from any role.

In contrast to the widespread effort to limit the definition of marriage, there are lawsuits pending in New Jersey, New York, Maryland, Florida, Indiana, California, Oregon and Washington State to win same-sex marriage rights.

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