¹Drake University

^*The authors would like to acknowledge the very helpful feedback and constructive criticism from their colleague and friend, Art Sanders, at Drake University and from Susan Burgess, the discussant on the Midwestern Political Science Association panel on which they first presented their paper. They also would like to thank the anonymous reviewers for Polity who provided invaluable feedback on the manuscript. Finally, the authors would like to thank Andrew Polsky and the rest of the editorial staff at Polity for all of their help.

Abstract

The definition of marriage as a union between a man and a woman has origins in sectarian religious views of marriage. Nevertheless, proponents of gay marriage have not yet fully explored the religious discrimination inherent in public policies that embrace this sectarian definition of marriage. Instead, advocates of gay marriage have largely relied on "equal rights" arguments or claims based on substantive due process and the equal protection clause of the 14th Amendment to make the case that gay marriage should be legalized. In an effort to address the religious underpinnings of arguments against gay marriage, this article will consider the implications of using a "religious rights" as opposed to an "equal rights" framework to analyze the debate over gay marriage. This piece will examine pertinent U.S. legal cases related to religious freedom, particularly Establishment Clause jurisprudence, and their applicability to the argument that gay marriage can be framed as a religious right. It also will consider the limitations of framing gay marriage as a religious right.