Blue States Are Trying To Get Ahead Of Supreme Court’s Next Possible Target

LGBTQ+ advocates are hoping to enshrine marriage protections for same-sex couples in several state constitutions this fall — a preemptive effort to protect that right from a conservative U.S. Supreme Court and a possible second Donald Trump presidency.
Voters in California, Colorado and Hawaii will have the opportunity next month to repeal language in their state constitutions that defines marriage as solely between a man and a woman, and to further solidify protections for LGBTQ+ families.
Same-sex marriage has been federally protected since 2015, when the Supreme Court ruled in Obergefell v. Hodges that state bans barring same-sex couples from getting married violated the equal protection clause of the Constitution.
But when the Supreme Court ― stacked with three more conservative justices appointed by Trump ― ruled against federal abortion protections in its 2022 decision on Dobbs v. Jackson Women’s Health Organization, advocates took note that other rights may also be on the chopping block.
Conservative justices argued in that decision that substantive due process — a principle in the Constitution that bars the government from interfering with certain rights — should be reexamined.
Conservative Justice Clarence Thomas specifically wrote in his concurring opinion that the court should “reconsider” the precedents created through this process in cases “including Griswold, Lawrence, and Obergefell.” These are landmark civil rights statutes that protect the right to contraception, the right to privacy and sexual acts in one’s own home, and the right to same-sex marriage, respectively. Thomas later wrote that the justices have a “duty to ‘correct the error’ established in those precedents.”
Some states are trying to get ahead of a potential rollback of Obergefell with ballot measures that would add constitutional amendments to safeguard and reaffirm marriage equality.
California’s Proposition 3 would repeal and overwrite the state’s ban on same-sex marriage that’s still in California’s constitution. In 2008, the voters in the state approved Proposition 8, which defined marriage as between a man and a woman and banned the state from recognizing same-sex marriage. It was made void after the Supreme Court’s 2013 decision in Hollingsworth v. Perry and allowed the state to resume same-sex marriages.
Colorado’s Amendment J similarly seeks to remove this narrow definition of marriage from the state constitution. And in Hawaii, voters will answer Question 1, which asks if voters want to remove language from the state constitution that gives Hawaii lawmakers the authority to reserve marriage only for “opposite-sex couples.”
“As someone who fought to establish and protect marriage equality in Hawaii for more than a quarter of a century, I refuse to stand by and watch this Court take a hatchet to rights won that had previously been denied,” wrote Rep. Jill Tokuda (D-Hawaii), in support of Hawaii’s amendment. “If this Court follows through on its threat to revisit Obergefell, we could easily see nationwide rights to same-sex marriage restricted again.”
Thomas’ mention of Obergefell in his opinion sounded the alarm for many LGBTQ+ advocates. In the unlikely scenario in which Obergefell is reversed, states would individually be able to determine the legality of same-sex marriage — much like the current landscape for accessing abortion. Twenty-nine states have some kind of constitutional amendment or statutory ban on same-sex marriage on the books, which could be triggered if Obergefell is overturned.
“We actually already know what it’s like to live in that world,” Andy Izenson, the senior legal director of the LGBTQ+ legal nonprofit Chosen Family Law Center, told HuffPost. “We lived in that world until 2015 and people were traveling to other states where marriage was legal to get married. They were going back to their home states and not really having recognition of their marriage.”
Currently, 69% of Americans support same-sex couples’ right to legally marry, which is more than double the rates of support in the late 1990s, according to a poll from Gallup.
And in solid blue states like California, Colorado and Hawaii, these constitutional amendments are likely to pass — though some organizers worry that voters may not fill out that part of their ballots.
In other states, efforts to extend or strengthen protections for LGBTQ+ people are hitting a snag. Organizers in New York are trying to drum up support for a constitutional amendment to protect people seeking abortion and LGBTQ+ people. But a small and vocal group of opponents have started to sow doubts and confusion about what the amendment will do.
New York’s Proposition 1 is a state version of the Equal Rights Amendment, a more than 100-year-old feminist effort to guarantee equal rights for women in the U.S. Constitution, which has been stalled in Congress for decades. New York’s measure would strengthen protections in its state constitution, which currently bans discrimination only on the basis of race and religion. Proposition 1 would also prohibit discrimination on the basis of sex, with an expansive definition to include “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
Similar to marriage equality and abortion amendments, New York’s effort would protect LGBTQ+ people from discrimination during a time when transgender youth and adults face numerous barriers to health care, the ability to update their legal documents and to use bathrooms and facilities that align with their gender identity.
An opposition group called the Coalition to Protect Kids, funded by an anti-abortion activist, has leveraged transphobic rhetoric to stoke fears about the presence of trans people in girls’ sports and women’s bathrooms — and that the amendment would somehow lead to dangerous outcomes. One campaign mailer sent by the New York Republican State Committee said that Prop. 1 would lead to children undergoing gender-affirming care “without the benefit of parental guidance.”
Trump and other Republicans have used similar rhetoric throughout the campaign cycle, hoping to drum up support among conservative voters by pushing baseless information about the risk that the existence of transgender people poses to the greater society. Republicans have shelled out more than $65 million in television advertisements that stoke fears about Vice President Kamala Harris’ record on LGBTQ+ rights and play to conservative fears about transgender athletes in school sports.
On same-sex marriage, however, the official Republican Party platform has softened its position. The current party platform removes language from the 2016 platform that defined marriage as “between one man and one woman, and is the foundation for a free society.” This year the GOP approved a platform that says it promotes a “culture that values the Sanctity of Marriage, the blessing of childhood, the foundational role of family, and support working parents.”
Though the party has on paper seemed to remove mention of the definition of marriage, Izenson said that Project 2025 — the more than 900-page policy handbook for a second Trump presidency written by the right-wing Heritage Foundation — lays out in greater detail what the legal landscape could look like for LGBTQ+ families in the coming years.
Among other policies aimed at LGBTQ+ people, Project 2025 proposes to protect religious organizations that maintain “a biblically based, social-science-reinforced definition of marriage and family” and argues that same-sex marriages have “higher levels of instability” because the average length of those marriages is half that of heterosexual ones — even though same-sex marriage wasn’t the law of the land until 2015.
The outcome of the November presidential election will play a major role in whether policies like these and increasingly religious carve-outs come into fruition. But in the meantime, LGBTQ+ people are hoping that ballot amendments in progressive states offer a stopgap and affirmation of LGBTQ+ equality.
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“Just with the upcoming election, who knows how things are going to work out federally,” John Wolfe, the owner of the Colorado LGBTQ+ bar Icons said to KKTV in Colorado Springs, “so this can protect our queer community and make sure that everybody is on the same playing field.”