LGBTQ+ marriage is legal, but is back on the ballot in three states

Voters in three progressive states go to the polls to vote on marriage equality. California, Colorado and Hawaii all have ballot measures that would establish the right of people of all genders to marry under state law.

This may sound like déjà vu: The Supreme Court granted same-sex couples a grant in its historic Obergefell v. Hodges in 2015 granted the right to marry nationwide. But many LGBTQ+ rights advocates worry about the vulnerability of marriage equality: Some Supreme Court justices have expressed interest in legal opinions in overturning the landmark ruling, and the court overturned its own precedent on abortion with the Dobbs case v. Jackson Women's Health Organization in 2022.

These three states are the first, after Obergefell, to put the issue of marriage equality before voters. Most states (35 in total) still have a constitutional ban or law prohibiting same-sex marriage. While the 2015 Obergefell decision currently supersedes these bans, they would come back into play if the Supreme Court ever revisited its 2015 decision (three, including Hawaii, are technically unenforceable).

Two years ago, Congress passed the Respect for Marriage Act, which forces states without equal rights laws to recognize the marriages of same-sex couples married in other states. This means that, at least in some parts of the United States, marriage equality cannot be made illegal.

This year, Republicans removed language from the Republican platform that the institution would be reserved for “one man and one woman,” a move intended to signal that Donald Trump and his allies would not seek equality if elected to undermine marriage. But advocates remain nervous about Republican interest in other anti-LGBTQ+ measures, such as bills blocking gender-affirming care for transgender youth.

For this reason, some states have moved to anchor protection in their own country.

“Marriage has meant many things throughout history, but for queer people it has always been about more than just a legal union – it has been a defiant act of love and resistance,” Jax Gonzalez, policy director at One Colorado, said in an explanation.

California

California passed Proposition 8 in 2008, banning same-sex marriage. Now, LGBTQ+ advocates are hoping the state will pass Proposition 3, which would repeal the 2008 law.

The law has been blocked since 2013 due to a separate Supreme Court ruling that found Prop 8 unconstitutional. But any law that would overturn the 2015 ruling would ostensibly also overturn the 2013 ruling.

According to Gallup, in 2023, 71 percent of Americans support marriage equality. That's why equality-loving Californians are striving to cement that right once and for all.

“Here in California, we believe that the ability to marry the person you love, regardless of race, ethnicity, gender or sexual orientation, is a fundamental right,” said state Senator Toni Atkins, a longtime LGBTQ+ advocate, in a statement Explanation. “At a time when our civil rights are under attack in courts and statehouses across the country, we cannot afford to wait to enshrine marriage equality in the California Constitution – now is the time to act.”

Colorado

Colorado is a critical state for LGBTQ+ families fleeing anti-transgender legislation in search of a safe and supportive environment. That could make the push to repeal the constitutional ban on marriage equality all the more urgent.

Voters going to the polls will have the opportunity to vote on Amendment J, which would repeal constitutional language limiting marriage to “a union between one man and one woman only.”

Jax Gonzalez, policy director for statewide LGBTQ+ organization One Colorado, said codifying marriage equality is not just about love, but also about legal rights and dignity.

“Marriage also gives us legal decision-making power and access to information about our medical care,” Gonzalez said in a statement shared with The 19th. “As a transgender person with a transgender partner, it is incredibly important to me that I can have the freedom to marry to ensure that we both receive appropriate medical care.”

Hawaii

Hawaii voters will also have the opportunity to vote against the constitutional ban on same-sex marriage in November. In 1998, voters approved Section 23 of the Constitution, which states that “the legislature shall have power to reserve marriage to same-sex couples.”

Advocates hope for a new answer in 2024. Same-sex marriage has been legal in Hawaii since 2013.

Rep. Adrian Tam told Civil Beat last year that he constantly reads the state constitution as a gay man.

“But for me it is sad to see how discriminatory Section 23 is. It is a constant reminder that the Constitution does not currently fully represent me in this one sentence.”

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The LGBTQ+ marriage post is legal but is back on the ballot in three states and first appeared on March 19th.

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