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Repair Windows errors before they cause bigger problemsFix Now →Scan for outdated or missing drivers - takes under a minuteDriver Scan →A state constitutional amendment can remove an old marriage ban and add protections under state law, but it cannot override the U.S. Constitution or a controlling Supreme Court ruling. Under Obergefell v. Hodges, states must license marriages between two people of the same sex and recognize those lawfully performed in another state. State amendments can strengthen protections within a state; they cannot guarantee that federal precedent will never change.
What does federal law require now?
In Obergefell v. Hodges, decided June 26, 2015, the U.S. Supreme Court held that the Fourteenth Amendment requires states to license marriages between two people of the same sex and recognize a same-sex marriage lawfully licensed and performed in another state. That federal constitutional rule governs states, including when a state constitution still contains contrary language.
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A state amendment therefore operates alongside the federal rule, not above it. It can set protections in the state constitution, but it cannot displace federal constitutional requirements or make a Supreme Court precedent permanent.
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Why can an unenforceable marriage ban remain in a state constitution?
A provision may remain printed in a state constitution after a court ruling makes it unenforceable. Virginia’s 2026 election information says its constitutional prohibition remains in the text but is no longer enforceable because of Obergefell. The presence of such wording does not, by itself, mean that the state may currently enforce it.
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Removing the wording can eliminate an outdated provision from the state’s governing document. An amendment can also go further by affirmatively protecting the right to marry under state law.
What can amendment language protect?
The scope depends on the actual text. When comparing proposals, check whether they repeal an existing ban, create an affirmative right to marry, identify protected characteristics, require equal treatment, and address recognition of marriages validly performed elsewhere. Those provisions should not be assumed to appear together in every state amendment.
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Virginia’s proposal for November 3, 2026
Virginia’s proposal would remove the existing prohibition and recognize a fundamental right to marry regardless of sex, gender, or race. It would also bar denying a marriage license for those reasons. The proposal is scheduled for the November 3, 2026 election; it is not yet an adopted amendment.
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New Hampshire’s proposal for 2026
House Concurrent Resolution 16 proposes adding Article 5-a. Its text would protect the right to marry regardless of sex, gender identity, sexual orientation, or race; provide for equal treatment; and require recognition of lawful marriages. The proposal is directed to the November 2026 election. The text says it takes effect if approved by two-thirds of voters and proclaimed by the governor. It remains a proposal until the required process is completed.
Nevada’s separate equality guarantee
Nevada’s constitution has an equality-of-rights clause that expressly lists sexual orientation and gender identity or expression. The official text says voters ratified that provision at the 2022 general election. It is a state-level equality guarantee, not a substitute for the federal marriage rule established by Obergefell.
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How do the current examples differ?
| State | What the cited text or proposal does | Status and timing |
|---|---|---|
| Virginia | Would repeal the existing ban, add a fundamental right to marry regardless of sex, gender, or race, and bar denying a license on those grounds. Out-of-state recognition is not stated in the cited election summary. | Proposed for November 3, 2026; not yet adopted. |
| New Hampshire | Would protect the right to marry regardless of sex, gender identity, sexual orientation, or race; provide equal treatment; and recognize lawful marriages. | Proposed for the November 2026 election. The text specifies approval by two-thirds of voters and proclamation by the governor for effectiveness. |
| Nevada | Its existing equality-of-rights clause lists sexual orientation and gender identity or expression; it is not a marriage-specific provision. | Ratified at the 2022 general election, according to the official constitutional text. |
What a state amendment cannot do
- Override federal law: A state constitution cannot authorize conduct that conflicts with a controlling federal constitutional rule.
- Make federal precedent unchangeable: A state-level safeguard cannot guarantee that the Supreme Court will never alter its interpretation of the federal Constitution.
- Supply protections its text does not include: Repeal, licensing, equal treatment, and recognition are distinct matters. Read the enacted language rather than assuming one clause covers every issue.
- Change the status of a proposal before adoption: Virginia’s and New Hampshire’s 2026 measures are proposals, not current state constitutional guarantees.
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