With federal judges in two highly conservative states striking down "defense of marriage" laws as unconstitutional this January, more church-state experts are advising same-sex marriage opponents that the marriage battleground should shift to religious freedom.
While the latest rulings in Oklahoma and Utah are on hold pending appeal (thanks to the U.S. Supreme Court), the most-recent states to legalize same-sex marriage—Hawaii and Illinois by state lawmakers, and New Jersey and New Mexico by state supreme courts—illustrate the differences between when lawmakers legalize same-sex marriage and when courts do.
In short, states where courts have ruled on same-sex marriage are "black hole" states where few or no specific religious protections are given, according to Robin Fretwell Wilson, a University of Illinois law professor who leads a group of legal scholars that advise lawmakers on religious exemptions. By contrast, she said, "There is not a single state that has accepted same-sex marriage [through legislation] where they haven't gotten a religious exemption."
Of note: In November, a lesbian lawmaker in Hawaii made national news when she voted against a draft of her state's bill legalizing same-sex marriage, citing religious freedom concerns. By contrast, after the New Jersey Supreme Court denied Gov. Chris Christie's appeal of a judge's overturning of the state's ban on same-sex marriage, an attempt by state lawmakers to later write a bill with religious protections collapsed under pressure from gay-rights groups. (The Associated Press highlights the next five states to watch.)
With same-sex marriage now legal in 17 states and the District of Columbia, ...1