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Fact check: Which states have constitutional amendments banning gay marriage?
Executive Summary
The central claim across the materials is that a substantial number of U.S. states still have constitutional or statutory provisions that explicitly banned same-sex marriage prior to and despite Obergefell v. Hodges [1], with counts varying between sources — commonly cited figures are between 26 and 32 states depending on definitions and timing [2] [3] [4]. Recent ballot activity in some states has removed or replaced anti‑same‑sex language, while other states retain dormant bans that would become enforceable only if the Supreme Court’s nationwide ruling were overturned [5] [6] [7].
1. Why the counts differ — a legal and definitional tug-of-war
Reports disagree on the number of states with bans because sources mix constitutional amendments and statutory bans and count differently depending on whether measures are currently enforceable. One source states 26 state constitutions contain bans on same‑sex marriage and 30 states have statutes banning such unions, with all rendered unenforceable by Obergefell [2]. Other analyses and summaries aggregate constitutional and statutory bans together and report 32 states with either kind of ban, stressing that these remain dormant but could affect tens of millions if Obergefell were reversed [3] [4]. The distinction between constitutional language and ordinary statutes matters because amending or repealing constitutions commonly requires voter referendums.
2. What the sources say about current enforceability and risks
All supplied sources acknowledge that Obergefell v. Hodges [1] made same‑sex marriage legal nationwide, rendering state bans unenforceable; nonetheless, many narratives emphasize the contingency that a future Supreme Court reversal would reactivate those laws. The MAP and Axios‑based summaries underline the practical risk: if the high court were to upend Obergefell, between 60% of U.S. LGBTQ+ adults and millions of couples could find marriage access restricted in states with on‑the‑books bans [3] [4]. This framing treats existing prohibitions as latent legal obstacles rather than presently operative constraints.
3. Recent state‑level action: repeal, replacement, and voter protection efforts
Since 2024, at least three states—California, Colorado, and Hawaii—have moved to remove the traditional “man‑and‑woman” definition of marriage from their constitutions via ballot measures or legislative action, effectively repealing or replacing anti‑same‑sex language [5] [6] [8]. These changes were advanced as safeguards against potential future judicial changes and were coupled with voter initiatives that expressly codified marriage equality in state law or constitutions. Meanwhile, other states such as Virginia were reported as pursuing repeal or amendment efforts as of September 2025, indicating an ongoing patchwork of state responses [7].
4. Numbers versus names — the missing list problem
Several sources provide totals but do not publish an identical state-by-state list of constitutional bans, creating confusion for audiences who want a definitive roster. One source supplies the figure 29 states with some form of constitutional amendment or statutory ban noted as existing on the books, while others prefer the 26/30 split or the consolidated 32 count [9] [2] [3]. The divergence stems from whether local statutory bans are tallied, whether amendments enacted after Obergefell are included, and whether recently repealed measures are subtracted.
5. How sources frame motives and political context
The coverage frames state actions differently: some pieces emphasize protective votes meant to insulate marriage equality from a conservative Supreme Court or a hostile federal administration, naming ballot success in blue states as proactive defense [6] [5]. Others highlight the latent reach of “trigger” or dormant laws that conservative state governments could resurrect if federal precedent changes, signaling a strategic concern among advocates and policymakers [4]. The narratives reflect broader partisan and advocacy agendas: proponents of repeal frame it as civil‑rights consolidation, opponents often emphasize states’ authority to set marriage rules.
6. What’s omitted or warrants closer scrutiny
Media summaries rarely catalogue every affected state or clarify the exact constitutional language that would be restored or removed, leaving out procedural details — such as whether repeal requires legislative supermajorities or voter referendums — that determine how easily bans can be changed [2] [9]. Additionally, demographic impacts are described in aggregate terms (e.g., “60% of LGBTQ+ adults”) without mapping which states or populations would be most affected, obscuring the geographic and social granularity of risk [3].
7. Bottom line for readers seeking a concrete list
The supplied materials consistently show a substantial body of dormant state bans on same‑sex marriage—commonly reported as 26–32 states depending on counting rules—and they report active efforts in certain states to remove or replace anti‑marriage language through ballot measures and amendments [2] [3] [4] [5] [6] [7]. For a definitive, up‑to‑date state‑by‑state list you would need a source that explicitly enumerates each state and notes whether the prohibition is constitutional or statutory and whether it has been repealed or amended since 2015; none of the current summaries provides that complete roster.