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, more religious liberty advocates like Wilson are helping same-sex marriage laws include sufficient religious exemptions.
"Too many folks see this as an all-or-nothing matter," says University of St. Thomas law professor Thomas Berg. "If religious liberty is tied to defeating same-sex marriage altogether, religious liberty is going to lose."
In other words: If you can't beat them, amend them.
CT recently asked a group of legal scholars on the forefront of advising lawmakers on religious exemptions to assess which of the 12 existing state SSM laws offer the best protections. Their general ranking is below. The best: Maryland and Rhode Island. The worst: Delaware.
A comprehensive chart that includes states with judicial rulings and more legal nuances can be downloaded here.
Opposing same-sex marriage on its merits is not an effective long-term strategy, according to Stanley Carlson-Thies, president of the Institutional Religious Freedom Alliance. And not just because younger people poll higher in their acceptance of gay marriage.
"There is a decreasing worry about same-sex relations—maybe because a lot of us know somebody in a same-sex relationship," he said. "There has also been a change in what people regard as equal treatment."
Other states will follow the current 17 states, said Wilson. Even religious conservatives in states with constitutional amendments defining marriage as between one man and one woman can't be too confident. In about two-thirds of those 28 states, marriage amendments are not hard to change, she said.
Wilson identifies four layers of needed protections. She starts with the clergy, who need—and already get—the best defense from the U.S. Constitution. While most states where same sex-marriage is legalized specify this protection, she calls it a "fake religious liberty protection" because it's already guaranteed at the federal level.