Politics / StudentNation / October 31, 2024

Why Marriage Equality Is Back on the Ballot

A second Trump presidency could bring same-sex marriage bans back into effect. In November, California, Colorado, and Hawaii will ask voters to secure marriage equality into state law.

Liam Beran

Governor Jared Polis speaking after the Colorado legislature passed a measure to repeal the ban on same-sex marriage currently in the state Constitution.


(Helen H. Richardson / Getty)

This November, facing a potential second Trump presidency, three states—California, Colorado, and Hawaii—will ask voters to secure same-sex marriage into state law.

In 2015, a 5–4 Supreme Court majority in Obergefell v. Hodges found that state bans on same-sex marriage were unconstitutional. But 30 states still have unenforceable amendments on the books that prohibit marriage equality, according to the LGBTQ+ advocacy group Movement Advancement Project. 

That leaves same-sex couples vulnerable if the Supreme Court were to overturn Obergefell, as hard-line conservative Justice Clarence Thomas signaled he would look to do in his June 2022 concurrence in Dobbs v. Jackson Women’s Health Organization: “We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote at the time. Broad consensus among Republican senators, according to NBC News, indicates that Trump would fill at least one Supreme Court vacancy during his four-year term if he wins in November.

Current Issue

Cover of April 2025 Issue

There is limited federal protection already in place for Obergefell’s potential overturning. In 2022, Congress passed the Respect for Marriage Act, which requires the federal government to recognize same-sex and interracial marriages and states to recognize same-sex marriages performed in states where such marriages are legal. Still, if the Supreme Court overturned Obergefell, states would not be required to issue marriage licenses contrary to state law. The Respect for Marriage Act, too, could always be overturned with a rightward shift in congressional power.

As such, California’s Proposition 3 would amend the state’s Constitution to include a “fundamental right to marry, regardless of sex or race” and remove language in the state’s Constitution, created in 2008 under Proposition 8, which states that marriage is only between a man and woman. Colorado’s Amendment J would remove the Colorado Constitution’s current language, which, after voters passed a 2006 amendment, only recognizes a marriage between one man and one woman. Hawaii has no current same-sex marriage ban on the books—its state legislature overturned a same-sex marriage ban in 2013—but its amendment would remove a constitutional provision that states that the legislature “shall have the power to reserve marriage to opposite-sex couples.”

Shay Franco-Clausen, political director of nonprofit LGBTQ+ civil rights organization Equality California and vice chair of the California Democratic Party’s LGBTQ+ Caucus, told The Nation that though she’s not organizing in Colorado or Hawaii, she suspects the simultaneous suite of amendments comes due to “that fear of a possible Trump administration.” Franco-Clausen is among the lead Democratic organizers working to support the passage of California’s same-sex marriage amendment.

“Before [Trump] was elected, and when he got elected, people were upset, but they hadn’t lived through it,” Franco-Clausen said. “Now that we’ve lived through it and the division that he continues to create, his naming that our marriages and our relationships aren’t real—that we’re not normal—that protection for people during another potential Trump administration is necessary. All states that don’t have same-sex marriages’ legal protection should have it.”

The Nation Weekly

Fridays. A weekly digest of the best of our coverage.
By signing up, you confirm that you are over the age of 16 and agree to receive occasional promotional offers for programs that support The Nation’s journalism. You may unsubscribe or adjust your preferences at any time. You can read our Privacy Policy here.

It’s a markedly different political landscape for same-sex marriage than it was when California’s and Colorado’s constitutional amendments were passed. In 2006 and 2008, only 42 percent and 40 percent of Americans thought same-sex marriage should be legalized, according to Gallup polling. But a majority of Americans (69 percent) in 2024 support legal same-sex marriage, even if that number has declined in recent years among all political identifications, most prominently Republicans.

Broad support for same-sex marriage is apparent in the amount of money raised in support of the amendments. Financial contributions toward each of the amendments have only come from their supporters: According to campaign finance reports, California’s, Colorado’s and Hawaii’s amendments have a total of almost $3 million, $440,000, and $55,000 in contributions respectively, with opposing parties raising $0 in funds.

Franco-Clausen said polling, with around 72 percent approving, looks strong for Proposition 3’s passage. Despite those comfortable numbers, a multimillion-dollar advertising campaign urging the amendment’s passage will air to voters in the final lead-up to the election. The advertising campaign is also part of an effort, first reported by Politico, to address a lack of diversity in how LGBTQ+ advocacy groups messaged about same-sex couples—largely depicting white, cisgender same-sex couples that strategists thought would appeal to conservative voters—during the 2008 campaign against Proposition 8. Franco-Clausen says both leadership and marketing for Proposition 3 better reflect the LGBTQ+ community’s diversity.

“The photos that are [now] being used are very intentional. The LGBT movement has really been centered in white gay men, white lesbians. [But] that’s our community too,” Franco-Clausen, who is Black and Puerto Rican, said. “A lot of organizations are changing their messaging and the images they use to reflect what the community actually looks like. We’re doing the same thing.”

Notably, the amendments expose an ideological shift among Republicans and conservative groups, many of whom, fearful of alienating an American electorate broadly supportive of same-sex marriage, have made no formal opposition to the amendments. California’s Republican Party, for example, is neutral on Proposition 3. The Hawaii Republican Party has not made an endorsement or rejection of the state’s amendment. And Colorado’s Republican Party even flip-flopped on support for its state’s amendment. For around eight hours, the Colorado Republican Party briefly supported Amendment J’s passage in a voting guide, according to reporting from the Colorado Times Recorder, before updating it to remain neutral on the amendment. Colorado Republican Party chairman Dave Williams did not respond to a request for comment from The Nation.

“Importantly, the focus of any LGBTQ-related efforts should be on the trans agenda and children harmed within this state,” read the now-deleted text. “Focus in LGBTQ issues by the GOP must turn to children and education.”

Colorado’s Amendment J has little organized opposition, though one religious group, the Colorado Catholic Conference, which represents the state’s Catholic bishops, opposes the amendment. Even so, executive director Brittany Vessely told The Nation that the organization is primarily focused on defeating an amendment that would create a constitutional right to abortion in the state and permit the use of public funds for abortion services, more so than the state’s same-sex marriage amendment.

Though polling data for Hawaii and Colorado’s amendments is limited, California’s amendment seems all but guaranteed to pass. It’s an exciting prospect for LGBTQ+ advocacy groups and activists, who say removing the state’s inert language against same-sex marriage sends a message that all are welcome in the Golden State.

“Our state Constitution still lists marriage as a union between a man and a woman,” Rae Seneff, a University of California San Diego student and president of the school’s College Democrats chapter, said in a video shared by the organization. “Marriage is defined by mutual love, not by one’s gender. This is why we must pass Prop 3, which would cut out this outdated language and make it clear that marriage is a fundamental right. Because it is.”

Support independent journalism that exposes oligarchs and profiteers


Donald Trump’s cruel and chaotic second term is just getting started. In his first month back in office, Trump and his lackey Elon Musk (or is it the other way around?) have proven that nothing is safe from sacrifice at the altar of unchecked power and riches.

Only robust independent journalism can cut through the noise and offer clear-eyed reporting and analysis based on principle and conscience. That’s what The Nation has done for 160 years and that’s what we’re doing now.

Our independent journalism doesn’t allow injustice to go unnoticed or unchallenged—nor will we abandon hope for a better world. Our writers, editors, and fact-checkers are working relentlessly to keep you informed and empowered when so much of the media fails to do so out of credulity, fear, or fealty.

The Nation has seen unprecedented times before. We draw strength and guidance from our history of principled progressive journalism in times of crisis, and we are committed to continuing this legacy today.

We’re aiming to raise $25,000 during our Spring Fundraising Campaign to ensure that we have the resources to expose the oligarchs and profiteers attempting to loot our republic. Stand for bold independent journalism and donate to support The Nation today.

Onward,

Katrina vanden Heuvel

Editorial Director and Publisher, The Nation

Liam Beran

Liam Beran is a 2024 Puffin student writing fellow focusing on LGBTQ+ issues for The Nation. He is a journalist and student at University of Wisconsin–Madison.

More from The Nation

Illinois Governor Pritzker Speaks At Center For American Progress In Washington, DC

Democratic Donors Packed the House for an “Actual Billionaire” Democratic Donors Packed the House for an “Actual Billionaire”

J.B. Pritzker's appearance at the Center for American Progress met with a resounding reception. But is his elevation to the national stage the way to reach working people?

Chris Lehmann

Protesters hold signs during a national day of action against Trump administration's mass firing of National Park Service employees at Yosemite National Park, California, on March 1, 2025.

Trump’s War on Public Lands Moves to its Second Phase Trump’s War on Public Lands Moves to its Second Phase

The Great Firing continues—and the next round of layoffs will reveal how much power over public lands the Trump administration will cede to corporations.

Lazo Gitchos

Demonstrators from the human rights organization Jewish Voice for Peace are detained by NYPD officers as they hold a civil disobedience action inside Trump Tower in New York on March 13, 2025.

Trump’s Mob-Boss Offer to Us Jews: Accept “Protection”—or Else Trump’s Mob-Boss Offer to Us Jews: Accept “Protection”—or Else

Under the guise of “fighting antisemitism,” Trump is shredding our rights and telling us we are safe.

Dave Zirin

Protest Tesla

Protest Tesla Protest Tesla

Street action at Tesla, Route 22, Springfield, NJ, March 1, 2025.

OppArt / Karen Guancione

Donald Trump speaks at the Justice Department March 14, 2025, in Washington, DC.

Trump Is Trying to Create His Own Personal Legal Strike Force Trump Is Trying to Create His Own Personal Legal Strike Force

With his speech at the DOJ, Trump officially declared his intention to reshape the legal system according to his whims and will.

Elie Mystal

Sherrod Brown: Three decades of talking about the dignity of work wasn’t enough to save him.

How the American Left Became Conservative How the American Left Became Conservative

Against the radical, if reactionary, experiment run from the White House, everyone from Democratic leaders in Congress to MSNBC hosts have turned to the defense of institutions.

Michael Kazin