Same-sex marriage and legislative grand bargains

Robin Wilson has an informative post at the Law and Liberty blog about the widely misreported Arizona bill SB 1062 that the state’s governor vetoed earlier this year. The upshot of Robin’s analysis, as I take it, is that recognition of same-sex marriage through the legislative process permits a legislative grand bargain that permits a larger recognition of anti-discrimination measures for gays and lesbians in areas where religious free exercise claims are weak combined with protection for religious liberty in the areas where those claims may be legitimate under the state’s version of the Religious Freedom Restoration Act (sacramental matters). I also read Robin’s personal opinion as being that the Arizona law should have been drawn in a more circumscribed manner that would have balanced all of these factors in a more even-handed way (it also appears that other legal scholars believe that the Arizona legislation, in fact, struck a useful balance). In fact, Robin says that this type of “grand bargain” (anti-discrimination protection for gays and lesbians combined with protection for authentic claims of religious liberty) is the type of bargain that has tended to emerge in those states where SSM has been recognized by legislation.

Leaving aside the analysis of the details of the Arizona bill itself, one inference I draw from Robin’s analysis is the value of recognizing SSM through the legislative process rather than by judicial mandate. The legislative process permits a degree of line-drawing and balancing of the type she describes (the details of such bargains will likely vary from state to state), whereas judicial legislation does not.

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Todd Zywicki · May 28, 2014

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