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Marriage equality may be settled law, but some states still have discriminatory amendments in their constitutions.
Marriage equality was established nationwide by the U.S. Supreme Court in its 2015 Obergefell v. Hodges ruling, and it’s also protected by the Respect for Marriage Act, signed into law by President Joe Biden in 2022.
But it’s still on the ballot in three states in this November’s election. Here are the states and why they’re voting on it.
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Proposition 3 asks voters to repeal Proposition 8, the 2008 ballot initiative that temporarily revoked marriage equality in the Golden State. Prop. 8 was struck down in court in 2013, but it remains part of the state constitution. Passing Prop. 3 “would establish as fundamental the right to marry,” notes GLAAD, which has compiled a list of this year’s LGBTQ+ ballot measures. “Voters deserve the opportunity to remove a black mark from the California constitution,” Assemblymember Evan Low said in proposing the measure.
Colorado needs to remove an anti-marriage equality amendment from its constitution as well. The amendment was nullified by the Obergefell ruling, but it’s still there, with the threat of enforcement if the Supreme Court overturns marriage equality, which right-wing Justice Clarence Thomas wants to do. (The Respect for Marriage Act requires all states to recognize same-sex marriages from other states as well as requiring federal recognition, but states wouldn’t have to offer equal marriage rights if Obergefell were overturned.)
“The Obergefell decision was a monumental step forward, but with the fall of Roe, we know we can’t rely on Supreme Court precedent to protect the freedom to marry,” said Jax Gonzalez, political director at One Colorado, according to GLAAD. “Removing the ban on same-sex marriage from the Colorado Constitution isn’t just about love or legal protection — it’s about affirming that our love, our dignity, and our equality are not up for debate. We owe it to the generations who fought before us, and to the future we’re building, to ensure these rights are secure.”
In Hawaii, which was once expected to be the first state with marriage equality (it wasn’t), voters in 1998 approved an amendment to the state constitution giving the legislature authority to limit marriage to opposite-sex couples. “It is the only section in our Bill of Rights that was inserted to deny a right,” Jeff Hong, a marriage equality activist, told Honolulu Civil Beat. Hawaiians will vote on a ballot measure that would remove this amendment.
