Same-sex marriage has been legal in all 50 states for nearly a decade, ever since the Supreme Court struck down all state bans in its 2015 Obergefell v. Hodges decision.
But if we’ve learned anything from the Dobbs v. Jackson Women’s Health Organization decision in June 2022 in which the high court’s conservative majority overturned 50 years of reproductive rights precedent, it’s that Supreme Court rulings are not set in stone.
About 80% of same-sex married couples are worried that SCOTUS will overturn the Obergefell v. Hodges decision, according to a June report from the Williams Institute at the University of California, Los Angeles.
State legislatures have been taking preemptive action by way of ballot measures, in the event SCOTUS decides to reverse the landmark decision that protects same-sex marriage rights. But marriage equality isn’t the only thing on the ballot this November. New York is asking voters to consider adding language to its constitution that would ban discrimination based on a person’s sexual orientation, gender identity and gender expression, while South Dakota voters will weigh in on a proposal to add gender-neutral language to its constitution.
Here’s where measures concerning same-sex marriage and LGBTQ+ rights will be on the ballot this election, all of them initiated through legislative action as opposed to citizen-led initiatives:
Some background: In 2008, California voters approved a measure that banned same-sex marriages by defining marriage as between a man and a woman. That language was superceded by the U.S. Supreme Court’s 2015 ruling that declared same-sex marriage legal in all 50 states.
What California’s Proposition 3 would do: It would declare that the “right to marry is a fundamental right” in the state Constitution, regardless of sex or race. It would also remove the language in the state Constitution that defines marriage as only between a man and a woman, in order to preemptively protect same-sex marriage if the Supreme Court reverses its 2015 decision.
What it needs to pass: A simple majority.
Some background: In 2006, Colorado voters approved an amendment to the state Constitution, which states that only a union between one man and one woman is recognized by the state. If approved, Amendment J would repeal the language in the state constitution as a safeguard, like California, to protect LGBTQ+ marriages in the event SCOTUS reverses its decision.
What Colorado’s Amendment J would do: Removes language in the state Constitution that says “only a union of one man and one woman shall be valid or recognized as a marriage in this state.”
What it needs to pass: Since the measure would only repeal language, only a simple majority is required for it to pass. If language were to be added to the state Constitution, a supermajority of 55% would be needed.
Some background: A Hawaii constitutional amendment adopted in 1998 gives the state Legislature the power to restrict marriage to just opposite-sex couples. In 2013, two years before the Supreme Court legalized same-sex marriage at the federal level, Hawaii passed a law making it legal at the state level. But the state constitution still contains language that grants state lawmakers “the power to reserve marriage to opposite-sex couples.”
What Hawaii’s Question 1 would do: It would repeal the constitutional provision authorizing the state Legislature to limit marriage to opposite-sex couples.
What it needs to pass: A majority consisting of at least 50% of the total vote cast at the election.
Some background: The New York state Constitution currently bans discrimination based on race, color, creed and religion. Advocates for Proposition 1, like New Yorkers for Equal Rights, a coalition of hundreds of civil and reproductive rights organizations, say the overturning of Roe v. Wade made them realize that fundamental rights were at risk due to loopholes in the state Constitution. Prop 1 seeks to close those loopholes by ensuring future elected officials cannot roll back equal rights protections.
What New York’s Proposal 1 would do: The legislator-led amendment asks voters whether they want to add language to the state Constitution banning any kind of discrimination based on “ethnicity, national origin, age, and disability,” as well as “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
Needed to pass: More than 50% of the vote.
Some background: The South Dakota state Constitution currently uses gender-specific pronouns to refer to officeholders, but the state will soon consider following in the footsteps of California, Delaware, Hawaii, Maine, New York, North Carolina, Rhode Island, Utah and Vermont, all of which now use gender-neutral terms in their state constitutions
What Amendment E would do: Amend the state Constitution to remove gender-specific language and replace it with gender-neutral language. For example, mentions of the governor would read “the governor may” as opposed to “he may.”
Needed to pass: A simple majority.
