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Marriage of necessity: same-sex marriage and religious liberty protections.

II. A (CLOSING) POLITICAL WINDOW FOR SECURING RELIGIOUS LIBERTY

In the past decade, support for same-sex marriage has escalated, a phenomenon that will only continue. This Part, along with Part III, demonstrates that increasing support, propelled by a constellation of characteristics in the Enacting Jurisdictions, produced a favorable environment for enacting same-sex marriage legislation.

Over the last five years, there has been a tremendous shift in favor of support for same-sex marriage. Nate Silver, a statistician whose modeling has accurately predicted the results of many same-sex marriage ballot initiatives, (135) analyzed results from 2008 exit polls in three states. (136) From that data, he distilled more than a dozen characteristics that were influential to public support or opposition to same-sex marriage; he extrapolates from those characteristics to predict how other jurisdictions would have viewed same-sex marriage if polled in 2008. (137) Figure 4 shows Silver's calculations for 2008. (138)

Figure 4 shows support in lighter shades and opposition in darker ones. Support exceeded 50% in only nine states located in the Northeast--not surprisingly, the incubator of same-sex marriage laws. In the remaining states, support was below 50% and in twenty-one states, below 39%.

Using the 2008 baseline, Silver projected support, state-by-state, into the present (gauged by his projections for 2012) and out as far as the year 2020. (139) Figure 5 documents a drastic change in public support between Silver's estimates in 2008 and projections in 2012.

By 2012, according to Silver's projections, in twenty-one jurisdictions, a majority of the population supported same-sex marriage (those in the lighter shades). In three jurisdictions, Rhode Island, D.C., and Massachusetts, support ranged as high as 63%. Only seven states showed support below 39%, with a total of thirty states having support below 50%.

Of course, Silver's estimates of support for same-sex marriage in 2008 and 2012 may be too generous or even too stingy. Yet, Silver's projections mesh with other reported increases in support for same-sex marriage. According to Gallup, public support has risen consistently since 1996. (140) In 1996, only twenty-seven percent of Americans believed that marriages between same-sex couples should be legally recognized, providing the same rights as traditional marriages. (141) By 2004, that slice grew to 42%, before falling to 37% the next year--a wobble up and down that nonetheless continued in an upward trend for several years. (142) By the end of 2010, a majority of those polled believed that "marriages between same-sex couples should ... be recognize[d] by the law." And that number reached 53% in 2011. Gallop reported in May 2013 that support across the United States remained at or above 50% in "three separate readings in the last year." (143)

It is worth pausing to note the explanatory power of these statistics. Until 2012, same-sex marriage opponents had "won" twenty-nine consecutive constitutional amendments fights--putting aside Arizona's 2006 failed constitutional amendment to ban same-sex marriage and civil unions both. (144) That streak ended abruptly in 2012 when opponents lost the referenda over Washington (145) and Maryland's same-sex marriage laws, (146) failed to secure a constitutional amendment in Minnesota, (147) and Maine voters enacted same-sex marriage at the ballot box (148)--all of which occurred after the tide of national public opinion had shifted in favor of same-sex marriage.

Silver projects that this uptick in support will only continue. As Figure 6 shows, by 2016, more than half of all voters in a clear majority of jurisdictions, thirty-two, are projected to support same-sex marriage. Voters in only two states, Alabama and Mississippi, show support below 39%, while in nineteen states support remains below 50%. Silver projects that in thirteen states, more than 60% of voters will support same-sex marriage.

By 2020, represented in Figure 7, Silver projects overwhelming support for same-sex marriage. At that point, only in Mississippi will support for same-sex marriage remain below 39%. In all states but six (South Carolina, Arkansas, Georgia, Louisiana, Alabama, and Mississippi), a majority of voters are projected to support same-sex marriage. In four of the latter (South Carolina, Arkansas, Georgia, and Louisiana), support for same-sex marriage is projected to be within two percentage points of a majority. In twenty-four jurisdictions, over 60% of voters are projected to support same-sex marriage.

In Silver's view, "the steadiness" of this trend-line:

   makes same-sex marriage virtually unique among all major
   public policy issues, and which might give its supporters more
   confidence that the numbers will continue to break their way. (149)


Given all this data, it would be surprising if advocates did not think same-sex marriage was inevitable. In fact, 85% hold the belief that "legal recognition of same-sex marriage is 'inevitable.'" (150)

Fifty-nine percent of opponents also believe it is inevitable. (151) Of all people polled on the question, 72% in 2013 said "legal recognition of same-sex marriage is 'inevitable,'" up from 59% in 2004. (152) In every demographic group polled, except those aged 18-29, the fraction who believed same-sex marriage to be inevitable increased from March of 2004 to May of 2013. (153) Even the most "tireless opponent" of same-sex marriage, Maggie Gallagher, believes same-sex marriage is a "foregone conclusion." (154)

Of course, people could be misgauging opposition, causing a rush to the judgment that "the game is over." But at least Gallup polling suggests otherwise. When people misjudge public support, they tend to see "most Americans [as] com[ing] down on the side of not legalizing it." (155) In other words, most people who misjudge support for same-sex marriage estimate on the low side, not the high side, but they nonetheless see same-sex marriage as inevitable.

The demographic profile of those opposed to same-sex marriage can only make same-sex marriage more inevitable. (156) Social scientists and polling groups alike have all documented a generational divide over same-sex marriage. (157) In general, younger people are more supportive of same-sex marriage, and support reliably drops off with age.

Pew, for example, found that in 2013, 66% of "Millenials," those born after 1981, who in 2013 were less than 33 years old, supported same-sex marriage. (158) Fifty-two percent of "Generation X," those born between 1965 and 1980, who in 2013 were between 33 and 49 years old, support same-sex marriage. (159) Only 41% of "Baby Boomers," those born between 1946 and 1964, who in 2013 were between 49 and 67 years old, support same-sex marriage. (160) Only slightly more than a third, 35% of the "Silent Generation," those born between 1928 and 1945 who in 2013 were 68 to 85 years old, favor same-sex marriage. (161) In every age bracket, stated support in 2013 represented the record high since polling began in 2001. The gap between generations is a persistent one. For example, in no year since 2013 was the gap between the Millennials and Generation X less than 4%. This support among the younger generations extends even to young evangelicals, (162) a group in which support for same-sex marriage is typically lower than average. (163)

Opponents of same-sex marriage could afford to ignore the phenomenon of a generational divide ?/it was localized to a fraction of states. However, the phenomenon is universal across all fifty states, as Figure 8 illustrates. Taking actual polling numbers from 1994 through 2008, which they then weighted, Professors Jeffrey Lax and Justin Phillips broke down support for same-sex marriage by state and age group for 2009. (164) In no state did younger voters show less support than older ones.

And matters are only going to get worse for opponents. To show the effects of the strongest objectors passing from the scene, Figure 9 replicates Lax and Phillips' data. (166) In it, each age group is weighted by their relative fraction in a given state's population, using 2010 Census data where possible. (167) The calculated averages in Figure 9 closely track Lax and Phillips' figure.

Figure 10 then eliminates the oldest generation, the effect of which is that the weighted average support in every state shifts to the right, showing greater average support. In 2009, without the oldest generation, an additional eight states cross the threshold to a majority of the population supporting same-sex marriage, bringing the total to fifteen states in which a majority would have supported same-sex marriage. An additional six states would be closing in on majority support, with support above 45%. While Figure 10 can only provide a coarse approximation, (168) it illustrates that public support will likely balloon with time.

Other factors contribute to increased support, as well:

   As a rule of thumb, perhaps about half of the increase in
   support for same-sex marriage is attributable to generational
   turnover, while the other half is because of the net change in
   opinion among Americans who have remained in the
   electorate. (169)


Changing attitudes toward same-sex marriage and homosexuality among the electorate explains some of the softening of opposition. More Americans have gay family members, or now know that they do, and more have familiarity with lesbians and gays. (170) Many more now do not share the view that same-sex marriage "will be bad for marriage, bad for children, and very bad indeed for those people of faith who want to maintain their faith's teaching on marriage, in their religious institutions and in their work." (171)

In the face of these trends, some opponents urge that religious liberty protections provided cover for cowardly legislators who otherwise would have not voted to allow marriage equality. Specifically, they say exemptions "allow[] a legislature to do the wrong thing, which is pass same-sex marriage." (172) Certainly, the close vote counts shown in Table 1 lend credence to the view that religious liberty protections mattered to the outcome in some states.

As noted above, many commentators and legislators believe that protections did, in fact, matter to the legislation's ultimate success. (173) At least one legislator, Vermont House Leader Lucy Leriche, candidly says she and others would have supported a law without exemptions if it was feasible, but it was not:

   We couldn't have [passed same-sex marriage legislation] without the
   religious liberty exemptions. If we could have, we would have,
   honestly. But we would not have been able to get enough votes
   without them. (174)


A more salient question is whether any enacted law would have passed within a year or two, with or without protections. In every Enacting Jurisdiction (except Minnesota), a majority of the populace supported same-sex marriage at the time of enactment. (175) Even in the states where the vote counts were closest (Illinois, Maryland, New Hampshire, and New York), a majority, albeit slight, of the state's population supported same-sex marriage. Given growing public support across the country, it is likely that same-sex marriage would have passed eventually in some form--but it would have required delaying marriage for couples clamoring to marry. Making enactment of same-sex marriage in those jurisdictions all the more inevitable, the same-sex marriage movement has followed a tried and true pattern, as Part III shows.

III. A CLUSTER OF POLITICAL FACTORS SUPPORTED MARRIAGE EQUALITY

Social scientists identify a short list of demographic factors that influence support for same-sex marriage. While other factors matter to public support, (176) experts note that:

1) Democrats tend to support same-sex marriage in huge numbers, (177)

2) Religious affiliation, or lack of it, matters to same-sex marriage support (178)--as does weekly or rare church attendance, (179)

3) Those with greater formal education tend to favor same-sex marriage. (180)

Taking a deeper look at the Enacting Jurisdictions, it is no surprise that they share this cluster of characteristics. (181) As Figure 11 shows, in every Enacting Jurisdiction (except New York (182)), Democrats controlled both houses of the legislature. In the sole exception, the New York Senate, a handful of holdout Republican Senators demanded, and received, religious liberty protections that exceeded those meager protections proffered by New York Governor Andrew Cuomo. (183)

As illustrated in Figure 12, every Enacting Jurisdiction had a Democratic Governor, with the exception of Connecticut and Vermont. (184) Connecticut's Republican Governor had no choice but to sign the legislation given the Connecticut Supreme Court's decision in

Kerrigan v. Commissioner of Public Health. (185) The Vermont Legislature overrode the Republican Governor's veto by a vote of twenty-three to five in the Senate and one hundred to forty-nine in the House. (186)

With scattered exceptions, the Enacting Jurisdictions all had populations that rank among the least religious but most educated. (187) To measure "religiosity," Gallup conducts telephone interviews with individuals eighteen years and older living in all states and D.C. and asks whether "religion is an important part of their daily life and [whether] they attend religious services every week or almost every week," and based on that response, reports the percentage of the population that is "very religious." (188) To assess the influence of religiosity, Table A4 presents Gallop's measure of "religiosity" by state. Rank-ordering the states from most religious to least allows one to then break those states into thirds. Every Enacting Jurisdiction ranks among the lowest third in religiosity in the country--except four (Delaware, Illinois, Maryland, and Minnesota), which occupy the lower portion of the middle third, as Figure 13 shows. (189)

Figure 14 is based on educational attainment data derived from Census Bureau reports on the percentage of the population with a bachelor's or advanced degree. (190) Rank ordering states from the highest to the lowest, in thirds, reveals that in the Enacting Jurisdictions, every state falls in the top one-third for educational attainment, except Hawaii. Hawaii appears near the top of the middle rung.

The short list of demographic factors posited to influence support for same-sex marriage likely created a favorable environment for same-sex marriage recognition. But existing legal constructs surely favored enactment of marriage equality, too. Some legislators see same-sex marriage legislation as "a reasonable extension" (191) of the non-discrimination laws that open access for lesbian, gay, bisexual, and transgender (LGBT) persons to housing, hiring, and public accommodations. (192) Those same laws provide not just a platform for same-sex marriage, but a powerful rhetorical argument against religious liberty protections, which some charge will chip away at those protections. Jenny Pizer, senior counsel for Lambda Legal, succinctly captures this contention:

   In some states, the price of equality in marriage has been
   agreeing to give up protections against discrimination as part of
   the negotiations.... In ways, I think, other politically
   vulnerable groups are not required to pay that price. (193)


These arguments have resonated with some legislators who say that if same-sex marriage legislation is about "equality, marriage equality" then "the extent to which we keep carving away at its vitality, that's very problematic." (194) (Properly understood, religious liberty protections should not be seen as a rollback of prior protections.) (195)

Not surprisingly, every Enacting Jurisdiction prohibited sexual orientation discrimination in housing, employment and public accommodations well before recognizing same-sex marriage, as Figure 15 shows. (196) Some Enacting Jurisdictions also separately prohibited gender identity discrimination. (197)

Leveraging a "perfect storm" of demographic variables, public support, and preexisting legal constructs, supporters succeeded in securing same-sex marriage in the Enacting Jurisdictions with modest religious liberty protections. Absent those protections, same-sex marriage surely would have been forthcoming, with or without protections, in a few short years.

IV. THE POLITICAL TERRAIN GOING FORWARD

So what does a die-hard opponent of same-sex marriage do in the face of these trends? What do the trends mean for those who are pursing marriage equality? Putting aside game-changing judicial decisions, (198) Professor Laycock rightly concludes that opponents, who are "losing this fight ... need to get some more liberty protections while they have a chance. Once a law is passed, it's too late." (199) But, same-sex marriage advocates should continue to bargain as well because the movement has nearly exhausted states with high support for same-sex marriage and favorable political terrain, (200) and it remains uncertain when and if the U.S. Supreme Court will take a marriage equality case. (201)

But unlike the Enacting Jurisdictions, in the thirty-one Nonrecognizing States, (202) the characteristics favoring marriage equality fragment. In more difficult political terrain, especially states in which legislators are accountable to more "very religious" people, one might reasonably expect that legislators will tip the balance between marriage equality and religious liberty in favor of religious objectors.

Here, the "perfect storm" works against an easier victory for same-sex marriage advocates, placing a premium on bargaining. As Figure 16 demonstrates, in the thirty-one Nonrecognizing States, Democrats control only three legislatures. Republicans control the legislature in twenty-five states and split control in three others. (203)

Figure 17 shows that in the Nonrecognizing States only seven governors as of October 22, 2013, are members of the Democratic Party. Republicans occupy the governor's mansion in remaining twenty-four states. (204)

In addition to being largely Republican-controlled, the Nonrecognizing States have more religious constituents. (205) As Figure 18 shows, only six of the Nonrecognizing States rank in the bottom third for religiosity. Twenty-five of the Nonrecognizing States rank in either the top or middle third. (206)

Figure 19 shows that the levels of formal education in the Nonrecognizing States is strikingly lower in than the Enacting Jurisdictions. (207) While three states rank in the top tier, as nearly every Enacting Jurisdiction did, twenty-eight Nonrecognizing States rank in the bottom two-thirds for educational attainment. Only Colorado, Virginia, and Oregon defy this trend.

Finally, same-sex marriage advocates will not have a background promise of non-discrimination working in their favor. Figure 20 shows that only a handful of remaining states, four, prohibit discrimination on the basis of sexual orientation in housing, hiring, and public accommodations. (208) The absence of a statewide guarantee of nondiscrimination is significant: it means that legislators crafting accommodations for same-sex marriage will be writing on a blank slate when deciding how little latitude--or how much--to give religious dissenters. If nothing in state or local law prohibits discrimination on the basis of sexual orientation or marital status, religious dissenters will not need religious liberty protections. Legislators interested in providing greater protections will not be subject to the claim--which has swayed some elsewhere--that religious liberty protections in the same-sex marriage law will "roll back" existing LGBT protections. (209)

Not only do the remaining states not offer statewide nondiscrimination guarantees, nearly all of the remaining states ban same-sex marriage in the state constitution. As Figure 21 shows, in twenty-seven Nonrecognizing States the state constitution presently bars same-sex marriage. (210) Only the constitutions of Wyoming, Indiana, West Virginia, and Pennsylvania do not ban same-sex marriage. (211)

In light of the state constitutional bans, some opponents might resist any bargain over same-sex marriage, believing that the outcome they seek--no same-sex marriage--is already in effect. However, state constitutional bans are not all set in stone, as Part V shows.

Those states in which the populous is highly supportive of same-sex marriage are no longer in play. As Figure 22 shows, in 2012, six of the Nonrecognizing States were deeply opposed to same-sex marriage, showing support less than 40%. In an additional twenty Nonrecognizing States, a majority of the populace simply does not support same-sex marriage.

The extent to which religious liberty protections will influence the fate of same-sex marriage in any given state likely will depend on a complicated interplay of preexisting nondiscrimination law, state constitutional prohibitions, popular support, legislative control, education, and religiosity, as well as a host of other factors, including pending constitutional litigation in state and federal courts, (212) and even the personal convictions of individual legislators. (213)
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Title Annotation:II. A (Closing) Political Window for Securing Religious Liberty through IV. The Political Terrain Going Forward, p. 1194-1228
Author:Wilson, Robin Fretwell
Publication:Case Western Reserve Law Review
Date:Mar 22, 2014
Words:3228
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