"Court of Public Opinion"
Thirty-one states have allowed their citizens to participate through voting on the issue of defining marriage and who is allowed to marry. Voters have approved constitutional bans on same-sex marriage in 26 states since the 2003 Massachusetts Judicial Supreme Court ruling, legalizing same-sex marriage; the constitutions of four other states also limit marriage to heterosexuals.
The importance and value of a constitution may be seen in the process of amending a constitution. State constitutional amendments are typically approved first by the legislature or special constitutional convention and then by the voters in a referendum. In some states, one or both of these steps is repeated.
Maine in a 2009 election was the thirty-first state by a public voter referendum in the battle over same-sex marriage to reject same-sex marriage. It was not an amendment to the Maine State Constitution, but a voter referendum to overturn and veto a law, passed by the legislature and signed by the governor allowing same-sex marriage. It past with 53%, 300,848 out of the 568,676 votes being cast voting to overturn and veto the law allowing same-sex marriage.
Same-sex marriage in California has been accepted by the California Supreme Court and the legislature, but rejected by the Governor and the people. Legislation was passed in 1971 to replace gendered pronouns with gender-neutral pronouns. California Civil Code relating to marriage was uniformly interpreted as including only opposite sex couples. But because of worries that the language was unclear, a bill was passed in 1977 defining marriage in California as a civil contract between a man and a woman. Proposition 22 was passed in a 2000 primary election, by a vote of 61% to 38%. Senator Knight authored it and the one-sentence code section explicitly defined the union of a man and a woman as the only valid or recognizable form of marriage in the State of California. In 2005 and in 2007 the California state legislature passed bills legalizing same-sex marriage both times Governor Schwarzenegger vetoed the bills. He did so in reference to Proposition 22. The California Supreme Court overturned Proposition 22 in a 2008 decision, thus allowing same-sex marriages to take place in California until November 2008. The ballot initiative, Proposition 8, a state constitutional amendment titled Eliminates Right of Same-Sex Couples to Marry Act, appeared on the California general election ballot in November 2008 and passed with a 52% majority. The California Supreme Court heard several challenges to Proposition 8 in March 2009,[but ultimately upheld the amendment.
Following is a table of the states listing the year, title, and the percentage of support for the amendment.
Amendments that grant legislative authority to ban same-sex marriage
State Year Support Vote % Title
Hawii 1998 69% Constitutional Amendment 2
Amendments that ban same-sex marriage
Alaska 1998 68 Ballot Measure 2
Nevada 2000, 2001 70%, 67% Nevada Question 2
Mississippi 2004 86% Mississippi Amendment 1
Missouri 2004 72% Constitutional Amendment 2
Montana 2004 67% Montana Initiative 96
Oregon 2004 57% Oregon Ballot Measure 36
Colorado 2006 56% Colorado Amendment 43
Tennessee 2006 81% Tennessee Amendment 1
Arizona 2008 56% Arizona Proposition 102
California 2008 52% California Proposition 8
Amendments that ban same-sex marriage and civil unions, but not other contracts
Nebraska 2000 70% Initiative Measure 416
Arkansas 2004 75% Constititional Amendment 3
Georgia 2004 76% Constititional Amendment 1
Kentucky 2004 75% Constititional Amendment 1
Louisiana 2004 78% Constititional Amendment 1
North Dakota 2004 73% North Dakota Constitutional Measure 1
Ohio 2004 62% State Issue 1
Oklhoma 2004 76% State Issue 1
Utah 2004 66% Constititional Amendment 3
Kansas 2005 76% Proposed Amendment 1
Texas 2005 76% Proposition 2
Alabama 2006 81% Sanctity of Marriage Amendment (Amendment 774)
Idaho 2006 63% Idaho Amendment 2
South Carolina 2006 78% South Carolina Amendment 1
South Dakota 2006 52% South Dakota Amendment C
Wisconsin 2006 59% Wisconsin Referendum 1
Florida 2008 62% Florida Amendment 2
Amendments that ban same-sex marriage, civil unions, and other contracts
Michigan 2004 59% State Proposal 04-2
Virginia 2006 57% Marshall-Newman Amendment