Following years of failed attempts under Republican control, Virginia’s newly empowered Democrats finally passed bills repealing two outdated state laws that prohibited same-sex marriage. Sen. Adam Ebbin, the first openly gay lawmaker in the state’s General Assembly, introduced the bill, which was one of four pro-LGBTQ measures passed in the state this month.
“This is really just bringing Virginia into the 21st century,” Ebbin told The Washington Post shortly after the bills’ passage. “Voters showed us they wanted equality on Nov. 5, and the Senate of Virginia has started to deliver on that.”
Despite the Supreme Court’s landmark 2015 ruling in Obergefell v. Hodges making same-sex marriage the law of the land, most states still have outdated laws on their books like the ones Virginia just repealed.
Indiana is one of those states, though an attempt to remove its gay marriage ban was unsuccessful last month in the Republican-controlled state Legislature. In fact, GOP opposition to its removal derailed legislation seeking to raise the legal age to marry in the state from 15 to 18. An amendment had been added to the age-limit bill that sought to scrap the state’s 1997 law declaring: “Only a female may marry a male. Only a male may marry a female.”
“I did not think it was unreasonable to remove what is now null-and-void unconstitutional language from the code,” state Rep. Matt Pierce, a Democrat, said in defense of the amendment. “I didn’t think it would be that controversial, because this issue has been settled now. Apparently to the Republican caucus it is controversial.”
"The religious right has not said, 'We lost same-sex marriage, and we are moving on.' They are still fighting same-sex marriage, both politically and legally."
Professor Jason Pierceson
In Florida, Democratic legislators have been trying for years to repeal the state’s ban — which says “marriage” means “only a legal union between one man and one woman as husband and wife” — with no luck.
"This is not just, you know, unconstitutional and not just obsolete, but this is cruel language in our statute. So, it needs to get out of there," Rep. Adam Hattersley told WUSF Public Media, adding that members of the state’s Republican leadership “don’t have an appetite to fix something” that they “hope would come back into play in the future.”
Five years after the Supreme Court had its say on the issue, same-sex marriage remains a politically contentious issue, and LGBTQ advocates continue to battle in courtrooms and statehouses to ensure gay couples can exercise their right to marry.
History of state-level gay marriage bans
States have two types of bans on same-sex marriage: statutory and constitutional. Statutory bans appear in state family law, while constitutional bans are embedded in states’ constitutions.
“Most of them are still on the books, though they are not enforceable,” Jason Pierceson, a political science professor at the University of Illinois Springfield, told NBC News.
“Democratic control of legislatures has created opportunities to get rid of some bans,” Pierceson said. “That’s the big difference between Indiana and Virginia.”
There were two phases of same-sex marriage bans, according to Pierceson. The first one began in the 1970s, when gay couples would apply for marriage licenses and many state judges at the time ruled that these unions were not prohibited. This prompted lawmakers to explicitly outlaw same-sex marriage. In 1973, Maryland became the first state to do so. Other states quickly followed, with Virginia, Arizona and Oklahoma passing similar laws in 1975, and Florida, California, Wyoming and Utah doing so in 1977.
The second phase followed a 1993 Hawaii Supreme Court decision that found denying same-sex couples the right to marry may violate the equal protection clause of the state’s constitution. That ruling prompted state and federal lawmakers to take action.
Utah was first to enact a statutory ban in response to that decision in 1995, and then a year later, Congress passed the federal Defense of Marriage Act, or DOMA, which defined marriage as between one man and one woman. Several states adopted their own “mini-DOMAs” after that, according to Pierceson, and by the year 2000, he said “virtually every state,” with the exception of New Mexico, had a “statutory ban on same-sex marriage.” These “mini-DOMAs,” he noted, banned gay marriage in family codes and state law, not the constitution.
In 1998, Hawaii became the first state to pass a constitutional amendment specifically targeting same-sex marriage. The measure empowered the legislature to enact a ban, which it did that same year through a constitutional referendum. Ultimately, 30 more states adopted constitutional amendments prohibiting gay marriage.
While the 2015 Obergefell v. Hodges decision overrides all of those state measures, many of them, particularly the state constitutional amendments, remain on the books for one reason or another. In some cases, there is a lack of political willingness to remove them, while in others, the labor-intensive removal process makes them a low priority.
In Virginia, for example, while the two statutory laws banning same-sex marriage have been repealed, the state’s 2006 constitutional amendment prohibiting gay unions remains for the time being. This is because amendments must pass both the state Senate and House of Delegates and be approved by Virginia voters.
Lawmakers in Nevada will allow voters to decide whether to strike down that state’s constitutional ban at the ballot box in November. Any constitutional amendment in Nevada requires such a statewide vote.
“In Colorado we got a whole host of things to work on from transportation to education to housing to access to heath care, but instead of being able to dedicate all our resources to things like access to HIV-prevention medications, we have to allocate staff time and resource just to be able fight these bills.”
Sheena Kadi, One Colorado
Sheena Kadi, deputy director of the LGBTQ advocacy group One Colorado, told NBC News that her organization has been having internal conversations for years about what to do with the state’s constitutional ban, which has been on the books since 2006 but would, in her estimate, take three to five years to remove it.
“We can take the first step through the Legislature, but then we would need a ballot initiative to remove that from the state Constitution,” she said. Given the organization’s other priorities, Kadi said going after the unenforceable constitutional amendment just seemed like too much work.
Pierceson said that in Colorado and a number of other states, having these amendments removed isn’t necessarily easy, as a number of conservative lawmakers are happy to keep them for both symbolic and political reasons.
“Many Republicans and the religious right hope Obergefell will be overturned, and then their state would go back to banning same-sex marriage, potentially,” he said.
Even after Obergefell, there have been a number of instances over the past five years where state and local officials have refused to issue marriage licenses to same-sex couples.
Just a few months after the ruling, a Kentucky county clerk, Kim Davis, garnered national attention for refusing to issue marriage licenses to same-sex couples. Davis, who went to jail for her refusal, has since retired after losing re-election in 2018. In 2019, the 6th U.S. Circuit Court of Appeals found that, although Davis was immune from being sued as a county official, she could be sued in her individual capacity for refusing to comply with the law.
In early 2016, Roy Moore, then the chief justice of the Alabama Supreme Court, prohibited probate judges in the state from issuing marriage licenses to gay couples. Moore, who is currently running for a U.S. Senate seat from Alabama, was suspended from his judicial duties in September 2016 over his gay marriage order. And just last year — following the persistent refusal of a number of Alabama probate judges to issue marriage licenses to any couples so they wouldn’t have to issue them go same-sex couples — the state passed a workaround bill that no longer requires a judge’s signature on marriage licenses.
Just last year in Texas, a Waco-based judge was issued a public warning by the state Commission on Judicial Misconduct for her yearslong refusal to perform same-sex weddings. The judge, Dianne Hensley, responded by suing the commission, claiming it violated her rights under the Texas Religious Freedom Restoration Act. Last month, Texas Attorney General Ken Paxton, a Republican, declined to defend the state agency in the lawsuit because its actions conflict with his views of the Constitution.
"We believe judges retain their right to religious liberty when they take the bench," Paxton’s spokesperson, Marc Rylander, said in a statement at the time.
Since the legalization of same-sex marriage federally, hundreds of state bills have been introduced that poke holes in gay marriage in various ways.
“The religious right has not said, ‘We lost same-sex marriage, and we are moving on,’” Pierceson said. “They are still fighting same-sex marriage, both politically and legally.”
Equality Federation, an LGBTQ social justice group, is tracking nine marriage bills that affect same-sex marriage across seven states: Iowa, Kansas, Massachusetts, Missouri, North Carolina, South Dakota and Tennessee.
Colorado had been on this list until just last week, when advocates defeated five bills they described as being anti-LGBTQ. One of them, House Bill 1272, had proposed that existing state law — which still stipulates that marriage is between one man and one woman — be enforced as written, and that no judicial rulings, including those from the U.S. Supreme Court, should influence their enforcement.
HB 1272 also sought to restrict adoption to “marriages and civil unions that consist of one man and one woman.” This could have called into question the legal parental status of Colorado Gov. Jared Polis, who in 2018 became the first openly gay man elected governor in the U.S.; he and his same-sex partner are not married and have two children together.
North Carolina and Tennessee are considering marriage bills similar to the one Colorado just killed. However, the majority of the bills introduced that target same-sex marriage have fallen within the “religious exemption” category, according to Pierceson.
InMassachusetts, one proposal asserts that the belief that marriage is only between one man and one woman is a protected religious belief and thus prohibits the government from “discriminating” against state employees or businesses that act on this belief.
Bills in Kansas, South Dakota and Tennessee draw on the idea of the separation of church and state in their proposals. These bills define marriage as between one man and one woman and argue that to mandate otherwise is tantamount to state sponsorship of the religion of “secular humanism.”
A bill in Iowa creates a new category of “elevated marriage,” defined as one man and one woman, and it stipulates distinct and additional vows and paperwork. A separate Iowa proposal would require applicants for marriage licenses to disclose their sexual orientation, which could be used in child custody cases.
In Missouri, one lawmaker proposed replacing all marriage licenses with domestic union contracts. The measure, House Bill 2173, has drawn opposition from both LGBTQ advocates and proponents of “traditional marriage.”
“Still seeing attempts to invalidate love and invalidate families and those protections that come along with it is frustrating,” Kadi said. “In Colorado we got a whole host of things to work on from transportation to education to housing to access to heath care, but instead of being able to dedicate all our resources to things like access to HIV-prevention medications, we have to allocate staff time and resource just to be able fight these bills.”
How safe is gay marriage?
More than 10 percent of LGBTQ adults were legally married in June 2017, just two years after the Obergefell ruling, according to Gallup, and the number is likely even higher now. In addition, public opinion has shifted strongly in favor of same-sex marriage, with a 2019 Gallup poll finding 63 percent of Americans approve of such unions.
So, is gay marriage safe?
“Absolutely not,” Kadi said, “especially given the current makeup of the Supreme Court.”
Pierceson largely agrees.
“I think in the short term marriage is fairly safe. It’s hard to see the Supreme Court overturn itself in the next couple of years,” he said, though he added that he is less confident about its long-term safety.
“The religious right, conservative movements and the Republican Party are hoping for an overturning of Obergefell with a more conservative judiciary,” Pierceson said.
Kadi noted that President Donald Trump has appointed more than 50 circuit court judges in his first term. And while Trump claimed to be a “real friend” to lesbian, gay, bisexual, transgender and queer people during the 2016 campaign, Kadi said his administration is “no ally to the LGBTQ community.”
“We have seen this impact not only the Supreme Court but the lower courts as well,” she said of Trump-appointed judges, many of whom have come under criticism for their anti-LGBTQ track records.
“It’s only a matter of time before we see another challenge" to same-sex marriage, he said. "That is why we have to stay vigilant.”