Beyond their practical effects, the very fact that 30 states have amended their constitutions to protect the definition of marriage in just over a decade is remarkable.
This week, Arizona, California, and Florida joined the 27 states with existing marriage amendments. The most interesting campaign was in California where voter approval of Proposition 8 reversed a May decision of the California Supreme Court. That decision had purported to discover a previously unknown mandate to redefine marriage as the union of any two people in that state’s constitution.
The Florida amendment had faced a difficult hurdle because it needed the support of 60 percent of voters for approval. Despite a much lower-profile campaign than California’s Prop 8, Florida’s Amendment 2 managed to garner 62 percent of the popular vote.
Voters in Arizona had narrowly defeated a proposed marriage amendment in 2006. That amendment had included a prohibition on marriage-equivalent statuses and the campaign against it seemed to have convinced voters that existing benefits for cohabiting couples were at risk. This time, the amendment (Proposition 102) merely defined marriage and was soundly approved.
Two practical benefits of the amendments are obvious. First, they will prevent (or, as in California, reverse) judicial decisions redefining marriage. Second, they make absolutely clear that the enacting state will not recognize a same-sex marriage from another state.
This second effect is becoming increasingly important. The recent repeal of Massachusetts’ residence requirement for same-sex marriage and the impending issuance of marriage licenses to same-sex couples in Connecticut mean that couples from other states can go to either of these to marry before returning home to seek recognition.
Typically, a state will recognize a marriage valid in another state even if it could not have been contracted in the recognizing state. There is an important historical exception, however, for marriages that violate that state’s laws — against incest and polygamy, for example. The marriage amendments certainly preclude any question as to what a state’s public policy on same-sex marriages is.
The first state amendments on marriage, in Hawaii and Alaska, were approved in November 1998 as a response to court decisions in those states that threatened a judicial redefinition of marriage. The next set, in Nevada and Nebraska, came a few years later when citizens initiated the amendment process because legislative attempts to pass simple marriage statutes were unsuccessful.
After the Massachusetts Supreme Judicial Court redefined marriage in that state and the mayor of San Francisco staged a publicity event involving the issuance of marriage licenses to thousands of same-sex couples from across the country, nearly a dozen states amended their constitutions in 2004.
More states enacted such amendments in 2005, 2006, and this year. Others are likely to follow. West Virginia and North Carolina, for instance, are both surrounded by states with such amendments and would seem to be good candidates for their own amendments. States considering such amendments will surely want to keep in mind the recent example of judicial overreaching in Connecticut.
History provides a few examples of multiple states each adopting similar constitutional amendments, but never with the specificity — and speed — of the movement to protect traditional marriage. Twenty states have “equal rights amendments,” for example, but these amendments lack the focus, in intent and effect, of marriage amendments — and it took far longer for 20 states to approve them than it did for 30 states to constitutionally define marriage. More states have passed odious Blaine amendments — but several of these were enacted as a condition for admission to the Union. At no point in our history has there been a comparable groundswell of support for such a specific constitutional provision.
What are the lessons of the remarkable constitutional movement for state marriage amendments?
First, the people of the United States care deeply enough about marriage to extend to it constitutional protection. And their support for these amendments is hardly a partisan affair — bridging racial, religious, and party divides.
Second, focused amendments can be a very effective way to respond to judicial overreach. They do not respond to systemic incursions on the principle of separation of powers but they can reverse specific instances. This appears to be true even where the political will to make a wholesale change is not present.
The amendment campaigns also serve to illuminate relevant issues. The campaigns against marriage amendments have typically focused on anything but the effects that a new adult-centered marriage institution would have in society. Rather, they attempt to change the subject by charging that the amendments will do more than just define marriage or by saying that amendments are not necessary because current law already defines marriage (an argument available everywhere but California). Thus, the anti-amendment campaigns have never attempted to offer a full-throated case for same-sex marriage.
Conversely, the pro-amendment campaigns have typically talked about nothing else but marriage. Contrary to the common charge that such amendments are “anti-gay,” the campaigns have carefully focused on the importance of husband-and-wife marriage, particularly for children.
California has witnessed a new development — an emphasis on the well-documented implications for religious liberty and other social norms of redefining marriage. In states with same-sex marriage or an equivalent status, there have been ample illustrations of such implications. They include changes in school curriculum, discrimination lawsuits against religious believers uncomfortable with equating same-sex and husband-and-wife marriages, and limitations on religious groups (see Massachusetts Catholic Charities, for instance).
These constitutional amendments are an important protection to society’s most basic institution. They protect children’s opportunity to know and be raised by their own mother and father. They are an increasingly important protection of religious liberty, and a bulwark to real pluralism. We haven’t heard the last of this constitutional movement yet.
– William C. Duncan is the director of the Marriage Law Foundation.