History[ edit ] The idea of extending marriage rights to same-sex couples did not become a political issue in the United States until the s. During that decade, several Western European countries legalized civil unions, and in the Supreme Court of Hawaii ruled in Baehr v. Lewin , P. Department of Public Health , the court legalized same-sex marriage in Massachusetts. Social and religious conservatives feared that their own state supreme courts would issue such rulings at some point in the future; in order to prevent this, they proposed additional constitutional bans on same-sex marriage.
Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. January Learn how and when to remove this template message Constitutional bans on same-sex unions were advocated in response to the legalization of same-sex marriage in other jurisdictions, notably Canada and Massachusetts. Some amendments and some proposed amendments forbade a state from recognizing even non-marital civil unions and domestic partnerships , while others explicitly allowed for same-sex unions that were not called "marriages".
Such amendments had two main purposes: Preventing a state's courts interpreting their state's constitution to permit or require legalization of same-sex marriage. Preventing a state's courts recognizing same-sex marriages that were legally performed in other jurisdictions.
Some proponents of such amendments feared that states would be forced to recognize same-sex marriages celebrated in other jurisdictions. They pointed to the full faith and credit clause , which requires each state to recognize the public acts, records, and judicial proceedings of each other state.
On the other hand, opponents argued that state constitutional amendments would do nothing to resolve this perceived problem. Traditionally, courts have held that a state is free to decline to recognize a marriage celebrated elsewhere if the marriage violates the state's strong public policy. That tradition was broken in with the Loving v Virginia case decided by a unanimous Supreme Court, which confirmed that the full faith and credit clause did require recognition of all legal marriages.
Similarly, in Obergefell v. Hodges the Supreme Court ruled that the federal constitution required state recognition of same-sex marriages. All state constitutions are trumped by the federal constitution due to the supremacy clause.
Conservative mobilization[ edit ] State referenda on constitutional bans of same-sex unions have been used as a "get-out-the-vote" tactic by Republicans and social conservatives.
The presence of these amendments on state ballots has been credited as providing a boost to Republicans in the election, and the Ohio amendment in particular has been cited as aiding President George W. Bush 's reelection campaign by motivating evangelical social conservatives in the state to go to the polls. Bush 's close political consultant, Karl Rove , has been an enthusiastic proponent and organizer of legislation banning same-sex unions.
After the general elections some activists argued that such referenda were starting to lose their potential to mobilize conservative voters. Kevin Cathcart, director of Lambda Legal pointed to the narrow defeat of Arizona's Proposition , which would have rendered civil unions as well as same-sex marriage unconstitutional.
The former gave the Hawaii state legislature the authority to ban same-sex marriages but did not explicitly make such unions unconstitutional. Virginia's amendment not only banned same-sex marriage and civil unions, but arguably rendered any state recognition of private contracts entered into by unmarried couples unconstitutional.