From the abstract:
In the space of one year since the U.S. Supreme Court decided Hollingsworth v. Perry and U.S. v. Windsor, the number of states recognizing same-sex marriage has exploded. Even though the Supreme Court eventually “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 spurred newly enacted legislation as well as judicial decisions, erasing a boundary that had largely confined same-sex marriage to the Northeast.
The recent explosion in judicial decisions (all but four of which are stayed) obscures the fact that, overall, a significant generator of marriage equality remains voluntary enactment by state legislatures and voters (“Enacting Jurisdictions”). Thus far, voluntary recognition of same-sex marriage has been yoked to 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, like providing a reception hall. Indeed, every single legislature to recognize same-sex marriage, and the single state to recognize it by popular referendum, has built in protections for religious objectors who adhere to a traditional view of marriage, although these vary greatly from place to place. In many Enacting Jurisdictions, more robust protections resulted in successful legislation where a bill with thinner or non-existent ones had failed just years before.
By recognizing marriage equality while providing important, if imperfect, protections to religious objectors, these laws deliver important gains to supporters and opponents alike. Ironically, prominent voices on each side now caution against the kind of compromise that made possible marriage-equality laws that serve both sides.
This Article 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.
Part I shows that same-sex marriage has spread across American 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 offers important, if flawed, protections to religious organizations and individuals.
Parts II and III document that a “perfect storm” of characteristics favoring marriage equality in the Enacting Jurisdictions, 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. This part argues that, 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 to dig in, resisting same-sex marriage at all costs — relying on constitutional bans against same-sex marriage. This part shows that constitutional amendments banning same-sex marriage do not provide the bulwark against change that some assume.
Part VI concludes that, in the tougher political terrain that looms, those who care about marriage equality can continue to sew up legislative victories, locking in marriage equality sooner — but the price tag in the short term will be to agree to robust religious liberty protections for dissenters. On the other side, 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 closing.