by Michael D. Peabody

On Tuesday (November 6) voters in many states had the opportunity to make decisions on state laws through ballot measures. Voters in Maine, Maryland, and Washington voted in favor of measures that would legalize same-sex marriage. Voters in Minnesota rejected a proposed constitutional amendment banning same-sex marriage, and voters in North Carolina voted to define marriage as solely between one man and one woman.

Voters in North Dakota rejected a Religious Freedom Restoration measure that would have required the government to demonstrate a compelling reason for imposing laws that are intended to be neutral but adversely affect the free exercise of religion.  North Dakota also rejected a bill that would have increase criminal sanctions against certain types of animal cruelty.

California voters approved increased sanctions against human trafficking but rejected a measure that would have called for labeling foods that contain genetically modified ingredients.

Several states also approved laws that would allow the recreational use of marijuana and expanded gambling. Ballot measures are subject to Federal pre-emption and judicial scrutiny but they are a reasonable way to gauge the mood of the voters in any given year. This year, after an intense campaign battle, the nation seems to have taken a decidedly left turn.

State by State Review

States not listed had no relevant ballot measures or no ballot measures of any kind.

Alabama –Two amendments related to constitutional rights and health care passed. Amendment 4 removes language from the Alabama Constitution that referenced segregation by race in schools and repealed Section 259 which related to poll taxes. Amendment 6, prohibiting mandatory participation in any health care system passed.

Alaska – Ballot Measure 1 which would create a convention to revise, alter, or amend the state constitution was defeated.

Arkansas – Issues 3 and 4 would have allowed 24-hour casinos in seven state counties. Although they were on the ballot, the results are not being tabulated due to litigation. Issue 5 which allows medical marijuana appears to be narrowly passing although results are not yet official.

California – Proposition 34 which would have eliminated the death penalty in California and replaced it with life in prison without the possibility of parole was defeated. Proposition 35 which would increase prison terms for human traffickers, require sex traffickers to register as sex offenders, and impose additional sanctions and mandate law enforcement training passed 81.4% to 18.6%. Proposition 37 which would require labeling on food indicating whether it contained genetically modified ingredients failed.

Colorado – Amendment 64 which legalizes marijuana for recreational use in the state passed by a margin of almost 10%. The legal question is whether this will pre-empt federal laws against marijuana use and possession.

Florida – Amendment 1 which would prevent penalties for not purchasing health care coverage to comply with federal health care with forms failed. Amendment 5 which would give the Legislature increased control over the judicial branch failed. Amendment 6 which would prohibit public funds for abortions failed. Amendment 8 which would repeal a ban of public dollars for religious funding failed. The Seventh-day Adventist Church went on record against Amendment 8 as a violation of the establishment clause and the potential for government regulation of publicly funded religious activity.  
Illinois – A citizen-initiated advisory question on same-sex marriage and “marriage-like rights” in opposition to a civil unions law passed June 1 last year (2011) failed the filing deadline.

Kentucky – There were no relevant measures on the ballot because some proposed measures did not make the ballot, including an expansion of legal gambling in the state, legalization of medical marijuana, and a law that would have prohibited the state supreme court from ruling on disputes over funding schools.

Maine – Voters approved Question 1 which overturned a 2009 voter-approved ballot measure that banned same-sex marriage in the state. Question 1 asked, “Do you want to allow the State of Maine to issue marriage licenses to same-sex couples?” It passed 53.89% to 47.11%.  It is noted that the ballot language initially proposed included a protection of religious freedom and asked, “Do you favor a law allowing marriage licenses for same-sex couples that protects religious freedom by ensuring no religion or clergy be required to perform such a marriage in violation of their religious beliefs?”  The final language was more simple although it does not diminish the rights of clergy or religious groups to decide which groups can get married.

Maryland – Maryland voters approved a measure that would allow same-sex couples to obtain a civil marriage license by a margin of 52.1% to 47.9%. Voters also approved a measure that would allow the expansion of commercial gambling.

Massachusetts – An “Act Relative to Death with Dignity” which would allow for terminally ill patients with six months or fewer left to live to be given lethal drugs was narrowly defeated. Voters approved a bill that would allow the use of medical marijuana in the state.

Minnesota – Voters rejected Amendment 1 which would ban same-sex marriage by recognizing marriage as solely between a man and a woman by a margin of 52.34% to 47.66%.

Missouri – No relevant measures on November 6, 2012. On August 7, 2012 as part of the Primary election, voters approved Constitutional Amendment 2 “Religious Freedom in Public Places” that guaranteed a citizen’s “right to pray and worship in all private and public areas including schools so long as the activities are voluntary and subject to the same rules and regulations that apply to all other types of speech.” The measure closely tracked existing Federal constitutional provisions in that it also  prohibited the establishment of an official state religion and coercion of any person to participate in religious activity.

Montana – Voters approved a measure that will require parental notification prior to an abortion for a minor. Notice is not required if it is an emergency, it is waived by a youth court in a sealed proceeding, or it is waived by the parent or guardian. Violation of the act is subject to criminal prosecution and civil liability. Montana voters also approved the Montana Marijuana Act which creates a registry program for cultivating, manufacturing, transportation and transfer of medical marijuana and allows inspections.  The primary purpose behind the medical marijuana act was to regulate the implementation of an existing law allowing medical marijuana possession and use.

North Carolina – Voters approved Amendment 1, “Defense of Marriage” amending the state Constitution to only recognize marriage between one man and one woman by a margin of 61.04% to 38.96%.

North Dakota – Voters rejected Initiated Constitutional Measure No. 3 that would prevent the government from burdening the sincere exercise of religious liberty by a person or religious organization absent proof of a compelling government interest, and then only by use of the least restrictive means by a margin of of 64.04% to 35.96% .This measure, also called the Religious Liberty Restoration amendment was a response to the 1990 Supreme Court decision in Employment Division v. Smith, 494 U.S. 872, that has allowed state laws to burden the free exercise of religion so long as the law is neutral and not intended to discriminate. Many churches promoted the measure, which the Seventh-day Adventist Church has promoted in many jurisdictions, but Planned Parenthood poured money into the opposition and claimed it could have opened the door for it to be used as a defense in breaking state laws involving abuse, domestic violence, and discrimination. While such application would not overcome a compelling state interest in safety, the arguments against this measure ultimately carried the day and people of faith in North Dakota can still have their religious free exercise rights taken away by “neutral” laws that adversely affect them. The “compelling state interest” test was initially applied by the Supreme Court in 1963 in a case involving a Seventh-day Adventist who had been denied unemployment benefits because her faith would not allow her to work on Saturdays. The North Dakota Measure as well as a previous federal Religious Freedom Restoration Act drew on the Court’s language in Sherbert v. Verner, 374 U.S. 398 (1963)
North Dakota voters also rejected a measure that would make it a class C felony to maliciously and intentionally harm a living dog, cat, or horse that would not apply to production agriculture, trappers, veterinarians, scientific researchers, or lawful defense of life or property failed. Voters also repealed the state constitutional provision that allowed the legislative assembly to levy an annual poll tax.

Oklahoma – Voters approved State Question No. 759 which amends the state constitution to prohibit affirmative action in the form of special treatment or discrimination based on race or sex in public employment, education, or contracts. There are three exceptions to the ban on affirmative action, including when gender is a bonafide qualification, it will not override existing court orders and consent decrees, and will not apply if affirmative action is needed to keep or obtain federal funds.

Oregon – Voters rejected an Measure 80 which would allow personal cultivation and use of marijuana.
Rhode Island – Voters approved two measures that would allow state-operated casino gambling, such as table games, at two specific existing facilities.

Virginia – Voters approved a measure that attempted to overturn the United States Supreme Court decision in Kelo v. City of New London, 545 U.S. 469, that upheld the eminent domain taking of private property and transfer to private business for economic development purposes. The measure specifies issues involving the extent of permissible taking, an expanse view of the value of such taken property, and that the purpose of the taking must be for a public use.

Washington – Washington voters approved Referendum 74 approving same-sex marriage. The measure reserves domestic partnership designation only for seniors and uphold the right of clergy or religious organizations to refuse to perform, recognize, or accommodate any marriage ceremony.Voters also approved the legalization of marijuana use by individuals over age 21 with certain licensing requirements for growing and selling marijuana.

Wyoming – Wyoming voters approved a state constitutional amendment that specifies that competent adults have the right to make their own health care decisions. The amendment was drafted in opposition to the federal Affordable Care Act.

Research and Analysis by Michael D. Peabody, an attorney in Los Angeles and editor of the ReligiousLiberty.TV website located at   He is available for speaking appointments and to provide analysis of constitutional trends involving liberty of conscience.