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LJN NewslettersNewsSectionsThe Matrimonial Strategist

The Tension Between Marriage Equality and Religious Liberty

BY Frank Gulino
May 29, 2012

Although an overwhelming majority of states still define marriage as the union of a man and a woman, there is little doubt that support for marriage equality ' recognition of the right of same-sex partners to marry as a matter of equal protection ' is on the rise. As recently as the beginning of summer 2011, only five states ' Massachusetts, Connecticut, Iowa, Vermont and New Hampshire ' had legalized same-sex marriage. Of those, only Vermont and New Hampshire had allowed same-sex marriage through legislation. Then, in less than a year, legislatures in four more states ' New York, Washington, New Jersey, and Maryland ' passed laws permitting same-sex marriage. During the same period, the Ninth Circuit ruled that Proposition 8, the 2008 California ballot initiative that deprived same-sex partners of the right to marry, was unconstitutional. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012). And on May 9, 2012, Barack Obama became the first sitting U.S. President to support gay marriage, publicly announcing his view that “same-sex couples should be able to get married.”

Tension Remains

But even amid these signs of rising support, there remains a palpable tension between proponents of marriage equality and opponents who argue that same-sex marriage laws threaten their religious liberty. In one of the states where legislators recently passed a bill that would allow same-sex marriage, New Jersey, the governor quickly vetoed the bill, urging instead that the issue of gay marriage be put to a public referendum. In two other states,Washington and Maryland, the ink was barely dry on their same-sex marriage laws when movements were underway to place the gay marriage issue on a referendum ballot, seeking to overturn the legislation. (In California, supporters of Proposition 8, which would define marriage as a union between a man and a woman, also filed a petition to have the Ninth Circuit rehear the Perry case en banc. Failing to obtain relief on that petition, there is little doubt that they will look to have the Perry decision overturned by the U.S. Supreme Court, which would end the prospect of same-sex marriages in the nation's most populous state.)

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