Washburn Law Journal
This Article discusses the current state of the law and offers thoughts on its future. Part Il provides a brief overview of the legal landscape involved in the clash between religious liberty and same-sex marriage From Justice Scalia's seminal religious liberty test to the evolution of same- sex marriage, Part Il describes the current law. Part III introduces the reader to public accommodations laws. After providing this brief history, Part Ill discusses three Supreme Court cases that could have resolved the religious liberty versus marriage equality question. Part IV looks ahead and draws analogies to the 1960s religious liberty objections as a way of predicting how the clash between religious liberty and marriage equality could play out. Finally, Part V concludes the Article by briefly exploring possible solutions to the clash of rights, before ending with a question. When the Court must finally choose between religious liberty rights and same-sex marriage equality, whose right will prevail?
This Article does not make a value judgment between those seeking religious liberty and those desiring marriage equality. Both sides raise valid and defensible claims. Our Constitution does not provide a hierarchy of rights and, thus far, the Court has avoided creating one. Liberty and equality are both important; however, the collision keeps occurring. Soon this clash of rights will require resolution.
Washburn University School of Law
Equal Justice Under Law: Navigating the Delicate Balance Between Religious Liberty and Marriage Equality,
Available at: https://scholarship.law.tamu.edu/facscholar/1524
Civil Rights and Discrimination Commons, Constitutional Law Commons, Family Law Commons, First Amendment Commons, Law and Gender Commons, Law and Politics Commons, Law and Society Commons, Sexuality and the Law Commons