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99 Va. L. Rev. Online 1 (2013)

handle is hein.journals/inbrf99 and id is 1 raw text is: VIRGINIA LAW REVIEW ONLINE VOLUME99 APRIL 2013 NUMBER 1 ESSAY PROTECTING SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY Douglas Laycock* and Thomas C. Berg** IN Hollingsworth v. Perry' and United States v. Windsor,2 or perhaps in some more clearly justiciable case a few years hence, the Supreme Court will decide whether states can prohibit same-sex marriages. The Becket Fund for Religious Liberty argued in both pending cases that protecting religious liberty is a rational basis for banning same-sex mar- riage.3 The conflict between religious liberty and gay rights is bad for both sides and dangerous for the American tradition of individual liberty. The Court can protect the rights of both sides. * Robert E. Scott Distinguished Professor of Law and Professor of Religious Studies, University of Virginia, and Alice McKean Young Regents Chair in Law Emeritus, Univer- sity of Texas. This article is based on the brief of the American Jewish Committee as amicus curiae in Hollingsworth v. Perry and United States v. Windsor. Only the brief itself speaks for the AJC. ** James L. Oberstar Professor of Law and Public Policy, University of St. Thomas (Minnesota). ' Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), cert. granted sub nom., Hol- lingsworth v. Perry, 133 S. Ct. 786 (2012). 2 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), cert. granted, Hollingsworth v. Perry, 133 S. Ct. 786 (2012). 3 Brief Amicus Curiae of the Becket Fund for Religious Liberty in Support of Hol- lingsworth and the Bipartisan Legal Advisory Group Addressing the Merits at 6-38, Hollingsworth v. Perry, 133 S. Ct. 786 (2012) (Nos. 12-144, 12-307). 1