Nevada Ballot Question 2: Marriage Regardless of Gender Amendment
In successive elections in 2000 and 2002, Nevada’s voters approved a constitutional amendment to define marriage as between “a male and female person,” effectively banning same-sex marriage. That measure declared marriages not fitting those parameters would not be recognized within the state and marriage licenses would not be issued for nonconforming parties. Ballot Question 2 asks voters to overturn that language and remove it from the state constitution. This is largely a formality to remove from the state constitution’s language that was invalidated by the U.S. Supreme Court’s ruling on same-sex marriage.
Question 2 also declares Nevada would “recognize marriages and issue marriage licenses to couples regardless of gender.” It also would expressly permit clergy and religious organizations to “refuse to solemnize a marriage.” Effectively, this would mean same-sex couples could receive a marriage from civil leaders even if they are refused by certain religious leaders. Notably, Question 2 still restricts the definition of marriage to “couples,” so polygamous marriages would still not be legal.
The Legislative Counsel Bureau’s fiscal staff determined Question 2 would have no fiscal impact.
Proponents’ Argument For:
Proponents believe all citizens should have access to the same rights conferred by marriage regardless of sexual orientation. This may include differential treatment more married couples filing federal income taxes, estate planning—so that heritable assets are bequeathed to the spouse, or access to the employer-provided benefits of a spouse—such as participation in group health insurance. Marriage also confers access to orderly divorce proceedings and a division of assets or child custody in the case a marriage is dissolved. Legally, proponents argue that the Fourteenth Amendment to the U.S. Constitution guarantees equal protection under the law and that this clause should be applied to the marital rights of same-sex couples.
Opponents’ Argument Against:
In defense of the ban against same-sex marriage, the state attorney general’s office argued: “The interest of the state in defining marriage in this manner is motivated by the state’s desire to protect and perpetuate traditional marriage.” Similarly, former Gov. Brian Sandoval, the Republican who served as governor from 2011 to 2019, argued:
“Even before statehood, the 1861 territorial laws defined marriage as existing between ‘a male and a female.’ The same limitation on marriage was codified in 1867…and is substantially the same today…Nevada’s statutes evince a strong encouragement of marriage in its traditional form. These laws are not based on policy whimsy; they are grounded in policy as deeply rooted as any that exists in Nevada law. They define Nevada society.”
Thirty states passed constitutional amendments defining marriage as between one male and one female between 1998 and 2012, including all of Nevada’s neighbors. Nevada did so in 2002. A lengthy fight over same-sex marriage ensued, accompanied by a large shift in public opinion in favor of it.
In 2015, the U.S. Supreme Court ruled that laws defining marriage as between one man and one woman are unconstitutional (Obergefell v. Hodges). Nevada’s Question 2 is a formality to change the state constitution to conform with the Supreme Court’s ruling. Question 2 was referred to the ballot by state lawmakers.
In Nevada, constitutional amendments can either be passed with the approval of voters in two subsequent elections, as was the case with the original amendment that restricted same-sex marriage, or by approval of lawmakers in two subsequent legislative sessions followed by voter approval in the next election. Lawmakers approved Question 2 in the 2017 and 2019 legislative sessions and the amendment would become effective upon passage in 2020.
Question 2 also stipulates the legal path that same-sex couples can take to marry, as well as protects clergy and religious organizations (who are also private parties) from being forced to marry same-sex couples against their will.