2024 Elections
Why Marriage Was On the Ballot (and Won) in 2024
As the nation grapples with the 2024 election results and its broader outcomes, MAP is highlighting Tuesday’s important wins for LGBTQ legal equality in three states.
This week, voters in California, Colorado, and Hawaii all chose to affirm and protect the right of LGBTQ people to legally marry. Ballot initiatives in these states repealed and removed outdated, discriminatory, and unenforceable laws from state constitutions.
- In California, voters repealed a constitutional amendment known as Proposition 8 originally passed by voters in 2008.
- In Colorado, voters repealed a 2006 constitutional amendment defining marriage as between one man and one woman. The state still has a statutory ban on marriage, but that ban is unenforceable because of a 2015 U.S. Supreme Court ruling that legalized marriage equality nationwide.
- In Hawaii, voters repealed a 1998 constitutional amendment that, while it did not ban marriage for same-sex couples, nonetheless gave the state legislature the explicit authority to do so.
While some states have repealed legislation restricting marriage for same-sex couples, these three states join Nevada in becoming the only states — so far — to repeal constitutional amendments banning marriage.
In 2020, Nevada became the first state to not only repeal its constitutional amendment banning gay marriage (first passed in 2002), but also the first state to enshrine marriage equality in a state’s constitution. The new constitutional amendment, known at the time as Question 2, explicitly affirmed that same-sex marriages must be treated the same as different-sex marriages.
What states still have bans on marriage equality?
These developments are a notable step forward for legal equality for LGBTQ people in these states, especially given that 33 states across the country still have discriminatory marriage bans (of different kinds) on their books, as shown in our map below.
Of these 33 states with remaining bans, now:
- 6 have only a statutory ban (i.e., a ban via legislation)
- 3 have only a constitutional ban (which are more difficult to repeal)
- 24 have both a statutory and constitutional ban (both of which would need to be repealed)
Today, these remaining bans are unenforceable due to the 2015 U.S. Supreme Court ruling in Obergefell, which legalized marriage equality nationwide. Additionally, Iowa’s ban was struck down prior to Obergefell for violating the state’s constitution, and so is unenforceable even if Obergefell were to be overturned. This means that there are 32 states total whose marriage bans (either statutory, constitutional, or both) could come back into play if Obergefell were overturned.
While all these remaining bans are currently unenforceable, the Supreme Court’s increasingly conservative and politicized rulings have brought growing concern about the potential for the Court to strike down its own ruling. The political climate for LGBTQ people has also become increasingly hostile in recent years, with record-breaking numbers of anti-LGBTQ bills across the country year after year.
These concerns for Obergefell escalated when, in June 2022, the Supreme Court struck down the nearly 50-year-old precedent of Roe v. Wade and effectively returned the question of abortion rights to the states. Conservative justices also stated in their decision striking down Roe that they were open to further revisiting of settled law, including Obergefell by name.
What would happen if Obergefell were overturned?
If the Obergefell ruling were to be struck down, we would return to a landscape where state law plays a dominant role in same-sex couples’ access to marriage — just as it did in the decades leading up to Obergefell.
As discussed above, there are 32 states across the country where LGBTQ people would potentially no longer be able to marry. These 32 states are home to nearly 8.5 million LGBTQ adults, or roughly 61% of LGBTQ adults. In other words, if Obergefell were to be struck down, over half of LGBTQ adults would lose access to marriage where they live, unless their state elected officials took action to protect this access.
Importantly, marriages that were legally issued prior to Obergefell being overturned would still be recognized, as they were lawfully entered into under controlling law at the time. But states with enforceable bans could choose to no longer permit same-sex couples to legally marry in their state.
The federal Respect for Marriage Act, passed by Congress in 2022, requires all states to recognize marriages (including same-sex marriages and interracial marriages) performed in other states. So, if Obergefell were overturned, states could theoretically not allow same-sex couples to marry, but couples who marry in other states — and those who were married prior to such a new Court ruling — would have their marriages recognized by all states.
Given the uncertainty regarding Obergefell, and even more so given the escalating political attacks on LGBTQ people nationwide, it is important that every state follow in the footsteps of Nevada, California, Colorado, and Hawaii, where voters have repealed discriminatory constitutional bans, and other states where legislatures have repealed statutory bans. States should repeal their outdated and discriminatory laws toward same-sex marriage — and indeed, any discriminatory law toward LGBTQ people.
▸▸ Learn more
- For more on the patchwork of state laws about marriage, including various efforts to modernize these laws, see MAP’s March 2022 report Underneath Obergefell: A National Patchwork of Marriage Laws — though note that the report does not include the 2024 developments covered in this post.
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