Lil Kalish
Tue, October 22, 2024 at 4:13 PM MDT·7 min read
LGBTQ+ advocates are hoping to enshrine marriage protections for same-sex couples in several state constitutions this fall — a preemptive effort to protect that right from a conservative U.S. Supreme Court and a possible second Donald Trump presidency.
Voters in California, Colorado and Hawaii will have the opportunity next month to repeal language in their state constitutions that defines marriage as solely between a man and a woman, and to further solidify protections for LGBTQ+ families.
Same-sex marriage has been federally protected since 2015, when the Supreme Court ruled in Obergefell v. Hodges that state bans barring same-sex couples from getting married violated the equal protection clause of the Constitution.
But when the Supreme Court ― stacked with three more conservative justices appointed by Trump ― ruled against federal abortion protections in its 2022 decision on Dobbs v. Jackson Women’s Health Organization, advocates took note that other rights may also be on the chopping block.
Conservative justices argued in that decision that substantive due process — a principle in the Constitution that bars the government from interfering with certain rights — should be reexamined.
Conservative Justice Clarence Thomas specifically wrote in his concurring opinion that the court should “reconsider” the precedents created through this process in cases “including Griswold, Lawrence, and Obergefell.” These are landmark civil rights statutes that protect the right to contraception, the right to privacy and sexual acts in one’s own home, and the right to same-sex marriage, respectively. Thomas later wrote that the justices have a “duty to ‘correct the error’ established in those precedents.”
Some states are trying to get ahead of a potential rollback of Obergefell with ballot measures that would add constitutional amendments to safeguard and reaffirm marriage equality.
California’s Proposition 3 would repeal and overwrite the state’s ban on same-sex marriage that’s still in California’s constitution. In 2008, the voters in the state approved Proposition 8, which defined marriage as between a man and a woman and banned the state from recognizing same-sex marriage. It was made void after the Supreme Court’s 2013 decision in Hollingsworth v. Perry and allowed the state to resume same-sex marriages.
Colorado’s Amendment J similarly seeks to remove this narrow definition of marriage from the state constitution. And in Hawaii, voters will answer Question 1, which asks if voters want to remove language from the state constitution that gives Hawaii lawmakers the authority to reserve marriage only for “opposite-sex couples.”
“As someone who fought to establish and protect marriage equality in Hawaii for more than a quarter of a century, I refuse to stand by and watch this Court take a hatchet to rights won that had previously been denied,” wrote Rep. Jill Tokuda (D-Hawaii), in support of Hawaii’s amendment. “If this Court follows through on its threat to revisit Obergefell, we could easily see nationwide rights to same-sex marriage restricted again.”
Viktor Staroverov (left) and Iurii Sigarev fill out paperwork to marry on Feb. 14, 2023, at City Hall in San Francisco. On Nov. 5, California voters will decide on a state constitutional amendment to protect the right to same-sex marriage. Jeff Chiu/Associated Press
Thomas’ mention of Obergefell in his opinion sounded the alarm for many LGBTQ+ advocates. In the unlikely scenario in which Obergefell is reversed, states would individually be able to determine the legality of same-sex marriage — much like the current landscape for accessing abortion. Twenty-nine states have some kind of constitutional amendment or statutory ban on same-sex marriage on the books, which could be triggered if Obergefell is overturned.
“We actually already know what it’s like to live in that world,” Andy Izenson, the senior legal director of the LGBTQ+ legal nonprofit Chosen Family Law Center, told HuffPost. “We lived in that world until 2015 and people were traveling to other states where marriage was legal to get married. They were going back to their home states and not really having recognition of their marriage.”
Currently, 69% of Americans support same-sex couples’ right to legally marry, which is more than double the rates of support in the late 1990s, according to a poll from Gallup.
And in solid blue states like California, Colorado and Hawaii, these constitutional amendments are likely to pass — though some organizers worry that voters may not fill out that part of their ballots.
In other states, efforts to extend or strengthen protections for LGBTQ+ people are hitting a snag. Organizers in New York are trying to drum up support for a constitutional amendment to protect people seeking abortion and LGBTQ+ people. But a small and vocal group of opponents have started to sow doubts and confusion about what the amendment will do.
New York’s Proposition 1 is a state version of the Equal Rights Amendment, a more than 100-year-old feminist effort to guarantee equal rights for women in the U.S. Constitution, which has been stalled in Congress for decades. New York’s measure would strengthen protections in its state constitution, which currently bans discrimination only on the basis of race and religion. Proposition 1 would also prohibit discrimination on the basis of sex, with an expansive definition to include “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
Similar to marriage equality and abortion amendments, New York’s effort would protect LGBTQ+ people from discrimination during a time when transgender youth and adults face numerous barriers to health care, the ability to update their legal documents and to use bathrooms and facilities that align with their gender identity.
An opposition group called the Coalition to Protect Kids, funded by an anti-abortion activist, has leveraged transphobic rhetoric to stoke fears about the presence of trans people in girls’ sports and women’s bathrooms — and that the amendment would somehow lead to dangerous outcomes. One campaign mailer sent by the New York Republican State Committee said that Prop. 1 would lead to children undergoing gender-affirming care “without the benefit of parental guidance.”
Trump and other Republicans have used similar rhetoric throughout the campaign cycle, hoping to drum up support among conservative voters by pushing baseless information about the risk that the existence of transgender people poses to the greater society. Republicans have shelled out more than $65 million in television advertisements that stoke fears about Vice President Kamala Harris’ record on LGBTQ+ rights and play to conservative fears about transgender athletes in school sports.
On same-sex marriage, however, the official Republican Party platform has softened its position. The current party platform removes language from the 2016 platform that defined marriage as “between one man and one woman, and is the foundation for a free society.” This year the GOP approved a platform that says it promotes a “culture that values the Sanctity of Marriage, the blessing of childhood, the foundational role of family, and support working parents.”
Though the party has on paper seemed to remove mention of the definition of marriage, Izenson said that Project 2025 — the more than 900-page policy handbook for a second Trump presidency written by the right-wing Heritage Foundation — lays out in greater detail what the legal landscape could look like for LGBTQ+ families in the coming years.
Among other policies aimed at LGBTQ+ people, Project 2025 proposes to protect religious organizations that maintain “a biblically based, social-science-reinforced definition of marriage and family” and argues that same-sex marriages have “higher levels of instability” because the average length of those marriages is half that of heterosexual ones — even though same-sex marriage wasn’t the law of the land until 2015.
The outcome of the November presidential election will play a major role in whether policies like these and increasingly religious carve-outs come into fruition. But in the meantime, LGBTQ+ people are hoping that ballot amendments in progressive states offer a stopgap and affirmation of LGBTQ+ equality.
“Just with the upcoming election, who knows how things are going to work out federally,” John Wolfe, the owner of the Colorado LGBTQ+ bar Icons said to KKTV in Colorado Springs, “so this can protect our queer community and make sure that everybody is on the same playing field.”
Following fall of Roe v. Wade, organizers get same-sex marriage on the ballot in three states
Maura Barrett and Halle Lukasiewicz
Tue, October 22, 2024
Freedom to Marry Colorado, a bipartisan organization dedicated to preserving equal marriage rights for same-sex couples, holds a rally outside the State Capitol in Denver.
Two years after the Supreme Court overturned Roe v. Wade, doing away with a half-century of precedent, activists worried that other high court decisions could be in jeopardy are taking their concerns to the polls. California, Colorado and Hawaii will soon allow their residents to vote on ballot measures that would remove language from their state constitutions prohibiting same-sex marriage.
The landmark 2015 Obergefell v. Hodges ruling, guaranteeing same-sex couples across the country the right to marry, makes these state bans unenforceable. However, these ballot measures seek to proactively protect these marriage rights should Obergefell ever be overturned.
Paul Smith, a Georgetown law professor who argued the landmark 2003 Supreme Court case Lawrence v. Texas, which struck down the country’s remaining anti-sodomy laws, said the high court’s Dobbs v. Jackson Women’s Health Organization decision, which struck down the landmark 1973 Roe v. Wade abortion ruling, should serve as a cautionary tale.
“We’ve had the example of how Dobbs can take down a long-standing precedent. Suddenly there are these state laws that were sitting there dormant, that came springing back to life,” he said, referring to the dozens of states that now have abortion bans following the Dobbs decision. “These states don’t want their same-sex marriage bans to come springing back to life, so they’re going to do something about it, if just in case.”
Smith validated the potential concern, pointing to Justice Clarence Thomas’ concurring opinion in the 2022 Dobbs decision.
Supreme Court Justices Samuel Alito and Clarence Thomas in Washington in 2021.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” Thomas wrote. (Griswold v. Connecticut is a 1965 high court ruling that established the right of married couples to use contraception.)
Earlier this year, Justice Samuel Alito renewed his criticism of the Obergefell ruling in declining to weigh in on a lower court case involving a dispute over dismissed jurors who had expressed religious concerns over same-sex relationships. Alito wrote that the case “exemplifies the danger” he sees in the 2015 decision.
“Namely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government,” he wrote.
The nine-member Supreme Court is the most conservative in a century, with six justices having been nominated by Republican presidents and three by Democrats. Ahead of the 2024 election, GOP senators are hopeful about the prospect of confirming even more conservative justices, as well as lower-court judges, if former President Donald Trump returns to the White House.
Mary Bonauto, one of the lawyers who argued Obergefell before the Supreme Court, said the high court is “a very unpredictable court at this point” and added that ballot measures like the ones in California, Colorado and Hawaii are a way for states to use their power.
“They have been aggressive about reversing precedents,” Bonauto said of the Supreme Court. “They have completely remade how they deal with the powers of the government.”
Bonauto, now the senior director of civil rights and legal strategies at GLBTQ Legal Advocates and Defenders, or GLAD, said that under the current circumstances, she doesn’t understand why anyone who has a chance to remove currently unenforceable language banning same-sex marriage from their state constitution “wouldn’t jump on it.”
Currently, 30 states have constitutional amendments banning same-sex marriage, with five also having statutes that prohibit such marriages, according to the Movement Advancement Project, an LGBTQ think tank. An additional five states have bans through statutes, though no constitutional amendments. In most of these cases, Smith said, the currently dormant provisions would become law again should Obergefell be overturned, just as long-dormant state abortion bans took effect after Roe v. Wade was struck down (constitutional amendments to protect or expand abortion rights will be on the ballot in 10 states next month).
Without Obergefell, there is federal legislation that would keep same-sex marriage rights mostly, but not entirely, intact: the Respect for Marriage Act. Signed into law by President Joe Biden in 2022, the bipartisan measure ensures federal protections for same-sex and interracial marriages. The law requires the federal government to recognize these marriages and guarantee them the full federal benefits of marriage, but it stops short of requiring states to issue marriage licenses contrary to state laws.
Bonauto and Smith agree it’s an important piece of legislation, but Bonauto noted there’s always a chance it could be repealed, should the balance of power shift in Congress, and Smith said the measure would leave those in conservative states vulnerable.
“Even if you can travel to New York to get married, to have suddenly in the law a provision that says you, out of all the people in our state, don’t get to pick your spouse… that would be a terrible thing to have on the books,” Smith said. “I don’t think states want to have that kind of thing — that second-class citizenship — restored, even if there is a workaround through the Respect for Marriage Act.”
Susy Bates, the campaign director of Freedom to Marry Colorado, a bipartisan organization dedicated to preserving equal marriage rights for same-sex couples, said if Obergefell were overturned and states had to rely on the Respect for Marriage Act, it would be “really murky.”
“Unless we take proactive measures, we can’t guarantee that marriage equality will be protected in the state,” she said.
It’s a personal issue for LGBTQ couples who had to navigate a time when same-sex marriage wasn’t legal or straightforward.
Anna and Fran Simon, the first gay couple to marry in Denver in 2014, had a large media presence at their civil union in 2013.
Before Anna and Fran Simon became the first same-sex couple in Denver to be legally married, in 2014, Anna was fingerprinted and had to undergo an FBI background check to change her last name. To have both of their names on their son’s birth certificate, the threshold was even higher: They hired a lawyer and petitioned a judge. It’s a process they want to ensure same-sex couples never have to go through.
“We had to cobble together all of the rights and protections we could, so we first paid lawyers thousands of dollars.” Fran said.
Anna added: “Having the legal recognition was extremely powerful for feeling like a full citizen. Those very real protections were extremely important psychologically, not just for us, but also for our son.”
Recent Gallup polling indicates 69 percent of Americans believe marriage between same-sex couples should be legal, and nearly as many say gay or lesbian relations are morally acceptable, at 64 percent. Support for same-sex relationships has drastically increased over the past few decades: When Gallup first polled the issue, in 1996, just 27% of Americans thought these unions should be legal.
Advocates of the proposition in Colorado say they’re pleasantly surprised they haven’t faced significant organized opposition against the ballot measure.
“Our largest party registration is No Party, or Independent,” Bates said. “I think Coloradans are really used to taking issues specifically as it relates to individual freedoms, individual rights, and really analyzing what that means for the day-to-day of people’s lives.”
When Colorado’s ballot measure was being considered in the state Legislature, Republican state Rep. Scott Bottoms, an opponent of the proposal, invoked religion in his nearly 8-minute speech, saying same-sex marriage, “goes directly against God’s laws.”
Bottoms then posted a video of his remarks on X, telling his followers: “The Democrats want to remove the idea of marriage between a man and a woman. You will have an opportunity to vote against this initiative in November.”
Bottoms did not respond to NBC News’ request for additional comment about his opposition to the proposal.
Even with every indication that the ballot measures will pass in all three states, Anna and Fran Simon say the fight for equal rights is long from over.
Fran Simon, left, with Anna and their son.
“We’ve seen how our lives as LGBTQ individuals have been used as a political football,” Anna said.
Fran added, “We feel like we always have to constantly fight to keep the protections and rights that we’ve worked so hard to to win.”
The Supreme Court does not currently have any cases on its docket that could threaten Obergefell’s precedent, but Smith pointed to the case of a former Kentucky county clerk, Kim Davis, that has been caught up in appeals for nine years. It first made national headlines in 2015, when Davis refused to issue marriage licenses to several same-sex couples based on her religious beliefs.
The conservative legal group Liberty Counsel recently filed a brief with the 6th U.S Circuit Court of Appeals in Cincinnati. The group, which has a long history of opposing LGBTQ rights in the court system, is headed by Mat Staver, who spelled out the suit’s intention in a release: “This case has the potential to overturn Obergefell v. Hodges and extend the same religious freedom protections beyond Kentucky to the entire nation.”
“It would not be at all surprising that in the next several months, we might see a petition for review ... to the Supreme Court,” Smith said. “I’m not predicting that the court would be all that excited about taking it right now — they have other things to think about but — but it’s certainly not impossible, and so there’s every reason for states that disagree with these same-sex marriage bans to get them off the books while they can.”
CORRECTION (Oct. 22, 2024, 5:20 p.m.): A previous version of this article misstated the historical significance of Anna and Fran Simon’s marriage. They were the first same-sex couple to be legally married in Denver and to get a civil union in the state; they were not the first same-sex couple to be legally married in Colorado.
This article was originally published on NBCNews.com
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