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Same-Sex Marriage Measures on the 2004 Ballot

November 17, 2004

Background

The issue of same-sex marriage was thrown into the national spotlight in November of 2003, when the Massachusetts Supreme Judicial Court ruled that it was unconstitutional to bar same-sex couples from civil marriage.  That was followed by a second ruling in February of 2004, stating that creating civil unions for same-sex couples while barring them from civil marriage was not acceptable.  Massachusetts has been issuing marriage licenses to same-sex couples since May, and many localities followed suit.

The national attention on the Massachusetts case soon overflowed to other states, and ballot initiatives started circulating this spring to amend state constitutions to define marriage as between one man and one woman.  33 states already have state statutes defining marriage as a union between a man and a woman; these ballot proposals go further would enshrine the definition in the states’ constitutions.  There are currently just six states with constitutional limitations on marriage.

What’s on the ballot this year?

While marriage measures are not a new subject on statewide ballots, they certainly have never appeared on the ballot in numbers like we’re seeing this year.  A whopping 11 states will vote on constitutional amendments defining marriage on November 2, and two states—Louisiana and Missouri—already approved marriage amendments in their primary elections earlier this year. 

Four of the 11 states voting on same-sex marriage in November are worth keeping an eye on for another reason—Arkansas, Michigan, Ohio and Oregon are among the list of 20 or so “battleground states” in the presidential election.  The presence of a controversial measure on the ballot has been known to increase voter turnout, and the same-sex marriage measures on the ballot in these four key states could increase turnout particularly among conservative voters, thereby influencing the presidential election as well.

Source:  National Conference of State Legislatures, November 2004

Some of these ballot measures simply define marriage as between one man and one woman (Mississippi, Missouri, Montana, Oregon).  Many others go further and state that a legal status which is substantially similar to marriage, such as a civil union, may not be recognized in the state (Arkansas, Georgia, Kentucky, Louisiana, Michigan, North Dakota, Ohio, Oklahoma, Utah).  9 ban civil unions too (including Louisiana's primary measure).

The measures in this second category are more controversial, and may open the amendments up to a legal challenge after the election, should they pass.  Many states have a so-called “single subject rule,” which requires ballot measures to address only one subject.  Opponents of banning same-sex marriage say that the measures that not only ban same-sex marriage but also restrict civil unions violate these single-subject rules.  In fact, Louisiana’s recently passed ban is currently being challenged on these grounds in the state courts.  In other states, opponents claim that ballot titles are misleading, describing only the portion of the amendment dealing with marriage and leaving out the part dealing with civil unions.  This is also grounds for a legal challenge, should such an amendment pass.  While challenges have already been filed in some states, courts generally wait until a measure has been adopted before hearing a case.

Oklahoma’s proposal is unique among the 11 in that it would make it a misdemeanor to issue a marriage license to a same-sex couple.  No other proposal contains criminal penalties for violations.

How does this compare to previous years?

• In 2002, Nevada passed an initiative amending their constitution to restrict marriage to opposite-sex couples.
• In 2000, Nebraska passed an initiative constitutional amendment, and California passed a statutory initiative, both defining marriage as between one man and one woman.
• In 1998, Alaska and Hawaii voters passed constitutional amendments referred by the Legislature to define marriage as between one man and one woman.

Who are the players?

There are literally dozens of state-specific organizations that support or oppose the same-sex marriage amendments, and a handful of national organizations.  The national organizations that support the amendments banning same-sex marriage include the Colorado-based Focus on the Family, the Christian Coalition, the American Society for the Defense of Tradition, Family and Property, and Americans United to Preserve Marriage, an organization headed by former presidential candidate Gary Bauer.

National organizations opposing bans on same-sex marriage include the American Civil Liberties Union, the National Gay and Lesbian Task Force, Lambda Legal and the Human Rights Campaign.

For more information

For more information on ballot measures, contact Jennie Drage Bowser in NCSL’s Legislative Management Program.

For more information on the issue of marriage, contact Christi Goodman in NCSL’s Children and Families Program.  You may also visit NCSL’s Same Sex Marriage web page.