Marriage of necessity: same-sex marriage and religious liberty protections.

• Author: Wilson, Robin Fretwell
• Position: Introduction through I. The Importance of Bargaining before Judicial Action, p. 1161-1194

ABSTRACT

Since the U.S. Supreme Court heard oral arguments in Hollingsworth v. Perry and U.S. v. Windsor, the number of states recognizing same-sex marriage has exploded. Even though the Supreme Court "stopped short of deciding whether the Constitution guaranteed a right to same-sex marriage," the Court's basic vindication of same-sex couples' right to equal treatment has spurred newly enacted legislation as well as judicial decisions recognizing same-sex marriage. The net effect has been to erase a boundary that had largely confined same-sex marriage to the Northeast.

In jurisdictions that voluntarily enacted same-sex marriage, religious liberty protections for religious objectors who adhere to a heterosexual view of marriage--exempting them from requirements to facilitate marriages inconsistent with their religious beliefs, by providing a reception hall, for example--proved vital to the legislation's success. In many Enacting Jurisdictions, more robust protections resulted in successful legislation where a bill with thinner or nonexistent protections had failed just years before.

Even though same-sex marriage recognition in the Enacting Jurisdictions has thus far been yoked to religious liberty protections-delivering important gains to supporters and opponents alike-prominent voices on each side now caution against compromise. Buoyed by their recent judicial victories, some supporters have hardened against compromise. With the recent spate of favorable judicial decisions, compromise may simply appear increasingly unnecessary.

Opponents are hardening in their stance, too. Far from folding in the face of the momentum carrying same-sex marriage across the country, some thought-leaders urge opponents to double down on their opposition. These opponents see only one way forward: fighting to the bitter end.

This Essay contends that we stand at a critical moment in the same-sex marriage movement. A clear-eyed examination of the marriage movement's success--and the challenges facing it going forward--reveals that both sides will benefit from remaining at the bargaining table, although the gains to each will be different.

For same-sex couples, voluntary recognition of same-sex marriage by legislation delivers the benefits and security of marriage today. True, many believe that the juggernaut of lower court decisions requiring same-sex marriage will lead in the near term to a favorable Supreme Court decision. Although that result is increasingly likely, it is nonetheless not assured. Moreover, the unanimity of decisions striking marriage bans may, ironically, delay an ultimate resolution by the Supreme Court, which often declines review until a meaningful circuit split arises. For marriage equality opponents, the voluntary embrace of same-sex marriage permits legislators to consider competing considerations, including concrete ways to permit those who adhere to a traditional view of marriage to continue to do so without facing civil lawsuits or government penalty.

Part I shows that same-sex marriage has spread across America through three different avenues: judicial decisions, state laws enacting same-sex marriage, and ballot initiatives--with judicial decisions being fraught with risk for religious dissenters while legislative or popular enactments offer important, if flawed, protections to religious organizations and individuals.

Parts II and III document that a "perfect storm" of characteristics favoring marriage equality in jurisdictions that voluntarily embraced same-sex marriage, together with extensive bargaining around religious liberty, nudged same-sex marriage legislation over the finish line. Even with these favorable conditions, marriage equality bills just barely squeaked over the line to enactment, helped by religious liberty exemptions.

That advantageous political terrain is now nearly exhausted, as Part IV documents. Going forward, one would reasonably expect more robust religious liberty protections to play a central part in any legislative compromises over same-sex marriage, at least for the near term.

Part V evaluates the impulse of some opponents of same-sex marriage to dig in, resisting same-sex marriage at all costs. In part, opponents rely on constitutional bans against same-sex marriage. Constitutional bans may well not survive judicial challenge. However, even without court action striking a ban, constitutional amendments banning same-sex marriage do not provide the bulwark against change that some assume since many can be repealed almost as easily as enacting ordinary legislation.

Part VI concludes that, in the tougher political terrain that looms, those who care about marriage equality can continue to sew up legislative victories--but the price tag in the short term will be to agree to robust religious liberty protections for dissenters. Those who wish to protect religious objectors from the unintended consequences of same-sex marriage should act with all deliberate speed to lock in robust religious liberty protections, because the window for securing them is almost certainly closing.

CONTENTS INTRODUCTION I. THE IMPORTANCE OF BARGAINING BEFORE JUDICIAL ACTION II. A (CLOSING) POLITICAL WINDOW FOR SECURING RELIGIOUS LIBERTY III. A CLUSTER OF POLITICAL FACTORS SUPPORTED MARRIAGE EQUALITY IV. THE POLITICAL TERRAIN GOING FORWARD V. DIFFICULT TERRAIN DOES NOT MEAN OPPONENTS CAN HOLD OUT CONCLUSION APPENDIX TABLE A1: STATES RECOGNIZING SAME-SEX MARRIAGE AND THE METHODS BY WHICH SAME-SEX MARRIAGE IS RECOGNIZED AS OF JAN. 14, 2014 TABLE A2: STATE-WIDE SEXUAL ORIENTATION NONDISCRIMINATION MEASURES TABLE A3: RELIGIOUS LIBERTY PROTECTIONS IN SAME-SEX MARRIAGE STATES TABLE A4: STATE POLITICAL CLIMATE TABLE A5: VOTE MARGINS IN ENACTING JURISDICTIONS TABLE A6: SAME-SEX MARRIAGE SUPPORT (AND OPPOSITION) IN CONSTITUTIONAL BAN STATES TABLE A7: SUPPORT FOR SAME-SEX MARRIAGE BY AGE, WITH AND WITHOUT THE OLDEST GENERATION INTRODUCTION

In the space of nine short months--from oral arguments before the U.S. Supreme Court in Hollingsworth v. Perry (1) and United States v. Windsor (2) to a pair of federal district court decisions invalidating state constitutional bans on same-sex marriage in direct reliance on Windsor (3)--the number of states recognizing same-sex marriage has exploded. If one includes the now-stayed decisions in Oklahoma (4) and Utah, (5) as of January 14, 2014, 19 states and the District of Columbia permit same-sex marriage, a leap from ten states mere months before. (6) Newly enacted legislation in five states (7) and judicial decisions in four others, (8) together with Hollingsworth's restoration of same-sex marriage in California, (9) erased a boundary that had largely confined same-sex marriage to the Northeast. (10)

Even though the Supreme Court "stopped short of deciding whether the Constitution guaranteed a right to same-sex marriage," (11) the Court's basic vindication of same-sex couples' right to equal treatment (12) hastened a spate of judicial decisions requiring state recognition of same-sex marriage. (13) Just as significant, the Court's "historic decisions" (14) fueled state legislation as well. In Hawaii, Senator Brickwood Galuteria introduced SB1 to enact same-sex marriage during a special legislative session. The bill's text explained that "[t]he legislature acknowledges the recent decision of the United

States Supreme Court in United States v. Windsor" (15) and seeks to "ensure that same-sex couples are able to...