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Random freezes, missing sound and display glitches usually trace back to one bad driver. Find and replace yours safely.Free scan · under a minuteA 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. Virginia and New Hampshire have proposals for the November 2026 election; neither proposal is in force as of October 4, 2026.
What federal law currently requires
In Obergefell v. Hodges, decided June 26, 2015, the U.S. Supreme Court held: “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex.” The opinion also requires a state to recognize a same-sex marriage lawfully licensed and performed in another state. These federal constitutional requirements apply even if a state constitution still contains contrary language.
What a state constitutional amendment can do
Remove an unenforceable ban
An amendment can repeal prohibitory language that remains in a state constitution even though federal law prevents the state from enforcing it. Removing that language changes the state constitution’s text; it does not create the federal rule established by Obergefell.
Add an express state-law right
A state can write an affirmative right to marry into its constitution and specify how that right is protected. Depending on the text, an amendment can also bar unequal treatment or address recognition of marriages lawfully entered elsewhere. Those provisions can make state protections explicit, but their scope depends on the words voters adopt.
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What a state amendment cannot do
- Override federal constitutional law. A state constitution cannot authorize officials to disregard a controlling federal constitutional requirement.
- Make a state ban enforceable while Obergefell controls. Contrary state text does not displace the Supreme Court’s holding.
- Guarantee that a federal precedent will never change. A state amendment can establish protection under state law, but it cannot bind the U.S. Supreme Court or prevent a future change in federal law.
How the 2026 Virginia and New Hampshire proposals differ
Both proposals are awaiting the November 2026 election process. Their wording and adoption conditions differ, so they should not be treated as interchangeable or described as protections already in force.
| State and status | What the proposed text would do | Adoption or effective-date details |
|---|---|---|
| Virginia — proposed for the November 3, 2026 election | Remove the state’s existing prohibition; recognize a fundamental right to marry regardless of sex, gender, or race; and bar denial of a marriage license for those reasons. | The proposal is not in force as of October 4, 2026. The cited Virginia election information identifies November 3, 2026, as the scheduled election date. |
| New Hampshire — HCR 16, directed to the November 2026 election | Add proposed Article 5-a protecting the right to marry regardless of sex, gender identity, sexual orientation, or race; provide for equal treatment; and address recognition of lawful marriages. | The proposal says it takes effect if approved by two-thirds of voters and proclaimed by the governor. It is not in force as of October 4, 2026. |
The distinction is practical: both proposals would affirm protections in state constitutional text, but the listed characteristics, express treatment of marriage recognition, and adoption conditions are not identical.
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Why a marriage ban can remain in a state constitution
Constitutional text does not necessarily disappear when a court ruling makes it unenforceable. Virginia’s Floyd County Office of Elections says its same-sex marriage prohibition “is no longer enforceable as a result of the United States Supreme Court decision in Obergefell v. Hodges in 2015,” while also noting that the prohibition remains in the state constitution. A repeal amendment would remove that text rather than make it newly enforceable.
How a separate state equality clause fits in
Nevada’s constitution has a separate equality-of-rights provision that expressly lists sexual orientation and gender identity or expression. The official text says the provision was ratified at the 2022 general election. It is a state-level equality guarantee, not a substitute for the federal marriage holding or a marriage amendment with the same wording and scope.
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What to check when reading a proposed amendment
- Does it repeal existing prohibitory language, establish an affirmative right, or do both?
- Which characteristics does it expressly name?
- Does it address equal treatment of spouses and recognition of marriages lawfully entered elsewhere?
- What vote or proclamation is required, and when would the amendment take effect?
Those details determine what the state constitution would say if voters approve the proposal. They do not change the distinction between state protections and the federal constitutional rule.
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