Religious facilities which may be rented out to non-members make up the next layer, Wilson said. Next are religious social service agencies (such as the Salvation Army or Catholic Charities), religious universities, and religious marriage counseling services which may be open to prosecution or civil suit if they don't accommodate same-sex couples seeking services.
The fourth layer comprises people of faith who work in so-called secular jobs. The marriage counselor at a non-religious practice, the judge asked to perform the marriage, the bakers and florists and photographers—all should have religious rights, she said. While New Mexico and Colorado courts have ruled that anti-discrimination trumps religious rights for private businesses, Delaware has gone so far as to recognize a judge's right to turn down a same-sex couple's request to perform the ceremony.
Even though the state offers few other protections (thus its low ranking on CT's chart above), the sheltering of people in the fourth layer makes Delaware ironically one of the most robust in terms of protections for individuals, Wilson said.
"Delaware is amazing, because they don't do anything for big religion but they do a lot for the small guy," she said. "In our view, the government employee can stand off as long as somebody else is there to do the service."
However, for Berg, who works with Wilson on state religious exemptions, protecting social services is the most crucial. "Social services and schools are outgrowths of the ministry of churches and denominations," he said. "Serving people is a core exercise of religion."
Another critical issue is protection from losing a tax-exempt status or license to operate, said Berg. Apparently state legislatures agree—all but Vermont protect same-sex marriage objectors against government penalty.
While some states offer fairly robust protection—such as Maryland, Rhode Island, and New Hampshire—none of the state laws are ideal, according to law professor Doug Laycock, a leading advocate of religious protections alongside Wilson. "They're often drafted in a hurry. They are incomplete or sometimes deeply ambiguous."
Part of the problem is a lack of political support for exemptions among opponents of same-sex marriage, he said. "Somebody has to credibly say, 'Give us a real religious liberty provision and we'll withdraw our opposition.'"
It's a hard shift for same-sex marriage opponents, but a necessary one, Laycock said. "They're losing this fight, and need to get some more liberty protections while they have a chance. Once a law is passed, it's too late."
Wilson agrees. "It's better to have protections now than holding out and getting nothing."
Caleb Dalton, litigation counsel for Alliance Defending Freedom, agrees that legalization of same-sex marriage via state laws is preferable to court rulings. "A ruling doesn't provide for specific protections the way a legislature can," he said. "That's one of the downsides of judicial fiat on this issue."
However, Dalton is among the legal experts who disagree that trying to block same-sex marriage laws from passing is a lost cause.