Marriage Equality States

Even before Obergefell vs. Hodges, the U.S. Supreme Court decision that nationalized marriage equality, a group of scholars led by Professor Wilson and another led by Professor Doug Laycock worked with lawmakers and stakeholders in states that voluntarily adopted same-sex marriage by legislation or ballot initiative (see Graphic 1) to provide needed accommodation for people of faith.

Those focused efforts, beginning in 2008, resulted in legislation that protected the free exercise of religious communities and individual believers, as shown in the maps below. Prioritizing compromise and common ground lawmaking, focused efforts resulted in legislation that protected religious communities’ free exercise of their religion, while showing that granting rights to the LGBT community does not need to imperil religious belief or practice. This balanced approach made possible legislative protections in a variety of states, like Connecticut, Delaware, D.C., Hawaii, Minnesota, Rhode Island, New Hampshire, Illinois, New York, Maryland, Vermont, Washington, and Maine. Learn more about religious exemptions and religion in family law here.

These accommodations nudged same-sex marriage legislation over the finish line. For evidence that marriage protections made marriage equality viable at a time of great debate and descension, see Marriage of Necessity: Accommodating Same-Sex Marriage and Religious Liberty Protections. Indeed, the religious liberty protections “proved to be the most microscopically examined and debated—and the most pivotal—in the battle over same-sex marriage. Protections that Republican senators inserted into the bill legalizing same-sex marriage provided more expansive protections for religious organizations and helped pull the legislation over the finish line.” New York’s conscious effort to leave room for those who adhere to a traditional view of marriage made good on America’s promise: e pluribus unum—one people.

Pointedly, these states that legislated around the question of marriage have more protections today than those that did not. Consider Pennsylvania. If religious conservatives had pushed for a same-sex marriage law in Pennsylvania with the kinds of religious protections that were part of the package in other blue states which adopted same-sex marriage legislatively, Catholic Charities adoption services in Philadelphia may have legal protection rather than facing jeopardy and closure.  

Although the issue of same-sex marriage has largely been settled by the Supreme Court’s decision in Obergefell v. Hodges, the team at Fairness for All continues to be actively engaged in promoting balanced legislation in various states across the political spectrum. The team has laid the groundwork for balanced legislation by partnering with legislators who are interested in finding common ground and negotiating solutions. The initiative continues to roll forward as the Fairness for All team hosts summits; meets with keys stakeholders, legislators, policymakers, and communities; analyzes local laws; drafts model legislation; organizes dialogues; and navigates perceived conflicts between religious freedom and LGBT rights. Join us as we broaden our efforts.