SCOTUS Blog Post on Gay Marriage, the Prop 8 Case, and Religious Liberty

The SCOTUS Blog is running an online symposium on Perry v. Schwarzenegger and Windsor v. United States, the cases challenging state and federal provisions limiting civil marriage to opposite-sex couples.  My contribution is here (more are coming from a variety of contributors).  Although I express sympathy for same-sex marriage as a matter of wisdom and policy, I argue that "[t]o say that same-sex civil marriage should be recognized does not mean, of course, that judges should require it under the Constitution":

In making that distinction, one could raise arguments about proper methods of constitutional interpretation, or warn about political blowback that aggressive judicial decisions can trigger (as even some pro-choice observers have remarked about Roe v. Wade).  I focus, however, on a different reason for the Court to tread gently in Perry: the religious liberty of traditionalist objectors to gay marriage, and how legislative recognition of marriage may be a better vehicle than judicial rulings for balancing religious liberty and gay rights.

I recap my argument (made at greater length here) that the strongest arguments for same-sex marriage--respect for conduct central to personal identity--themselves call for strong religious-liberty accommodations.  I argue that judicial declarations of same-sex marriage, as in California, have been (and are likely to be) a less hospitable context than legislation for factoring in countervailing religious-liberty limits.  This provides a reason to prefer legislative handling of the marriage issue, and for voters in California to overturn same-sex marriage until they could be confident the religious-liberty concerns would be addressed.