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

• Author: Wilson, Robin Fretwell
• Position: II. A (Closing

2. A (CLOSING) POLITICAL WINDOW FOR SECURING RELIGIOUS LIBERTY

   In the past decade, support for same-sex marriage has escalated, a phenomenon that will only continue. This Part, along with Part III, demonstrates that increasing support, propelled by a constellation of characteristics in the Enacting Jurisdictions, produced a favorable environment for enacting same-sex marriage legislation.

   Over the last five years, there has been a tremendous shift in favor of support for same-sex marriage. Nate Silver, a statistician whose modeling has accurately predicted the results of many same-sex marriage ballot initiatives, (135) analyzed results from 2008 exit polls in three states. (136) From that data, he distilled more than a dozen characteristics that were influential to public support or opposition to same-sex marriage; he extrapolates from those characteristics to predict how other jurisdictions would have viewed same-sex marriage if polled in 2008. (137) Figure 4 shows Silver's calculations for 2008. (138)

   Figure 4 shows support in lighter shades and opposition in darker ones. Support exceeded 50% in only nine states located in the Northeast--not surprisingly, the incubator of same-sex marriage laws. In the remaining states, support was below 50% and in twenty-one states, below 39%.

   Using the 2008 baseline, Silver projected support, state-by-state, into the present (gauged by his projections for 2012) and out as far as the year 2020. (139) Figure 5 documents a drastic change in public support between Silver's estimates in 2008 and projections in 2012.

   By 2012, according to Silver's projections, in twenty-one jurisdictions, a majority of the population supported same-sex marriage (those in the lighter shades). In three jurisdictions, Rhode Island, D.C., and Massachusetts, support ranged as high as 63%. Only seven states showed support below 39%, with a total of thirty states having support below 50%.

   Of course, Silver's estimates of support for same-sex marriage in 2008 and 2012 may be too generous or even too stingy. Yet, Silver's projections mesh with other reported increases in support for same-sex marriage. According to Gallup, public support has risen consistently since 1996. (140) In 1996, only twenty-seven percent of Americans believed that marriages between same-sex couples should be legally recognized, providing the same rights as traditional marriages. (141) By 2004, that slice grew to 42%, before falling to 37% the next year--a wobble up and down that nonetheless continued in an upward trend for several years. (142) By the end of 2010, a majority of those polled believed that "marriages between same-sex couples should ... be recognize[d] by the law." And that number reached 53% in 2011. Gallop reported in May 2013 that support across the United States remained at or above 50% in "three separate readings in the last year." (143)

   It is worth pausing to note the explanatory power of these statistics. Until 2012, same-sex marriage opponents had "won" twenty-nine consecutive constitutional amendments fights--putting aside Arizona's 2006 failed constitutional amendment to ban same-sex marriage and civil unions both. (144) That streak ended abruptly in 2012 when opponents lost the referenda over Washington (145) and Maryland's same-sex marriage laws, (146) failed to secure a constitutional amendment in Minnesota, (147) and Maine voters enacted same-sex marriage at the ballot box (148)--all of which occurred after the tide of national public opinion had shifted in favor of same-sex marriage.

   Silver projects that this uptick in support will only continue. As Figure 6 shows, by 2016, more than half of all voters in a clear majority of jurisdictions, thirty-two, are projected to support same-sex marriage. Voters in only two states, Alabama and Mississippi, show support below 39%, while in nineteen states support remains below 50%. Silver projects that in thirteen states, more than 60% of voters will support same-sex marriage.

   By 2020, represented in Figure 7, Silver projects overwhelming support for same-sex marriage. At that point, only in Mississippi will support for same-sex marriage remain below 39%. In all states but six (South Carolina, Arkansas, Georgia, Louisiana, Alabama, and Mississippi), a majority of voters are projected to support same-sex marriage. In four of the latter (South Carolina, Arkansas, Georgia, and Louisiana), support for same-sex marriage is projected to be within two percentage points...