U.S. State Constitutional Amendments Banning Same-sex Unions - Purpose and Motivation

Purpose and Motivation

Constitutional bans on same-sex unions were advocated in response to the legalization of same-sex marriage in other jurisdictions, notably Canada and Massachusetts.

Some amendments and some proposed amendments forbid a state from recognizing even non-marital civil unions and domestic partnerships, while others explicitly allow for same-sex unions that are not called "marriages".

Such amendments have two main purposes:

• Preventing a state's courts from interpreting their state's constitution to permit or require legalization of same-sex marriage.
• Prevent a state's courts from recognizing same-sex marriages that were legally performed in other jurisdictions.

Some proponents of such amendments fear that states will be forced to recognize same-sex marriages celebrated in other jurisdictions. They point to the full faith and credit clause, which requires each state to recognize the public acts, records, and judicial proceedings of each other state. On the other hand, opponents argue that state constitutional amendments will do nothing to resolve this perceived problem. Traditionally, courts have held that a state is free to decline to recognize a marriage celebrated elsewhere if the marriage violates the state's strong public policy. (§134 of the First Restatement of Conflicts, on Marriage and Legitimacy (1934)). They argue that if the full faith and credit clause did require recognition of same-sex marriages, state constitutional amendments would be trumped by the federal constitution due to the supremacy clause.