Americans concerned about LGBTQ equality are working on enshrining marriage equality rights in state governing documents. With Republican President Donald Trump in the White House, Congress controlled by the GOP, and a conservative supermajority on the U.S. Supreme Court, advocates said there is real concern that same-sex marriage rights may erode.
Already some early signs in Idaho, for example, point to conservative political leaders seeking to undo legal same-sex marriage even as advocates work to place a pro-marriage equality initiative on the ballot there in 2026.
Chris Melody Fields Figueredo, a queer woman who is the executive director of the Ballot Initiative Strategy Center, a national organization based in Washington, D.C., touted recent election wins in California, Hawaii, and Colorado in a phone interview with the Bay Area Reporter.
"We've been working proactively with our partners to see where are there places where we need to remove out-of-date language, or affirmatively protect the freedom to marry," she said.
The push comes over two years after U.S. Supreme Court Justice Clarence Thomas' words in a concurrence to the 2022 ruling in Dobbs v. Jackson Women's Health Organization, which overturned the constitutional right to abortion in Roe v. Wade.
Thomas wrote that the justices "should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell." Griswold v. Connecticut was a 1965 ruling that people have a constitutional right to access contraceptives; Lawrence v. Texas was a 2003 ruling that overturned laws prohibiting sexual relations between people of the same sex, as well some laws against oral or rectal intercourse between members of the opposite sex; Obergefell v. Hodges was the 2015 case that led the court to declare marriage equality was protected by the Constitution, making it legal in all 50 states, regardless of their state laws.
"You remember Justice Thomas and some of the language he used about what could be next," Fields Figueredo said. "There was already concern inside the LGBTQ+ community, but it has increased given the conservative makeup of the U.S. Supreme Court."
Trump nominated, and the U.S. Senate confirmed, three conservative justices during his first term in the White House. That has resulted in a 6-3 conservative makeup of the court.
Last year, California voters repealed the Golden State's constitutional amendment that had declared marriage a union of one man and one woman, as the B.A.R. extensively reported. The amendment was the result of voters passing Proposition 8 back in 2008 that defined marriage as being between one man and one woman. Federal courts ultimately ruled prop 8 unconstitutional and same-sex marriage became legal in the Golden State in 2013. But the old Prop 8 language remained in the state's governing document until last November, when voters passed Proposition 3, which removed it.
In Colorado, voters last November repealed a 2006 amendment in that state, while voters in Hawaii passed an amendment to limit the Legislature's power to define marriage.
"These were proactive measures to take out language in state constitutions such as 'marriage is defined by a man and a woman,'" Fields Figueredo said.
Former President Joe Biden did sign the Respect for Marriage Act in 2022 that guarantees the recognition of same-sex and interracial marriage in every state. It does not enshrine the right to marriage in every state; it only requires that states recognize marriages performed in other states or those that had been legally certified in the past, as ABC News reported.
Other states
Now, Fields Figueredo is looking forward to battles in other states. In Arizona, a bill before the Legislature would put a constitutional amendment on the ballot in 2026 to remove language limiting marriage to one man and one woman.
In Nebraska and Virginia, the state assemblies are considering repealing the prohibition on marriage equality and recognizing marriage regardless of gender and race.
Also in Colorado, the state Senate is considering repealing a statute that pre-dates the 2006 constitutional amendment.
And in Idaho, legislation would also put the freedom to marry on the ballot in 2026.
However, Idaho is seeing a nascent effort to reverse Obergefell v. Hodges. House Joint Memorial No. 1 passed the Idaho House of Representatives in a 46-24 vote. If it passes the Senate, the Gem State would send a letter to the high court asking justices to overturn their 2015 decision.
Fields Figueredo said her group is laying the groundwork to protect people's rights if that becomes the case.
"How do we, especially in the times we are in, do no harm, and ensure we can protect communities?" she asked.
There is a multi-prong approach to their work.
"What it looks like is looking at the legislative landscape, looking at the potential champions in the state legislature, and doing research around voter opinion," she said. "The way it'll work in most of these states is the legislature will have to refer a constitutional amendment to affirm protections for marriage equality, whether it's a Florida-based group, a group in Idaho, or Iowa.
"What is the opportunity?" she asked. "What is the voter education and research to make sure voters have the information they need to affirmatively vote yes on whatever that might look like."
The Ballot Initiative Strategy Center is also trying to protect access to gender-affirming care for youth alongside abortion rights after states like Missouri enacted bans on it.
"That's one thing we're tracking as well, is where the opposition might come for gender-affirming care and also in states that take reproductive freedom to the ballot are there also opportunities to protect gender-affirming care?"
Equality California's Tom Temprano, a gay man who is the organization's managing director of external affairs, confirmed that the center worked with the statewide LGBTQ organization on Prop 3, the California initiative.
"The Ballot Initiative Strategy Center was a strong partner in our successful effort to enshrine marriage equality in the California Constitution this past November," Temprano stated to the B.A.R. "We are grateful for their work and are glad they support similar efforts to protect the freedom to marry in states nationwide."
LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact John Ferrannini at [email protected]
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