That’s the title of a short Stanford Law Review Online essay by law professor, and Becket Fund lawyer, Mark Rienzi, on how the Supreme Court can, as his subtitle puts it, best “reconcile same-sex marriage and religious liberty.” Drawing on the “abortion roadmap,” Rienzi explains that a ruling against state marriage laws would be much easier to reconcile with religious liberty if that ruling rested on substantive due process grounds rather than equal protection:

The key to such a ruling would be for the Court to make clear what has long been implicit in its substantive due process decisions: namely, that substantive due process is a two-way street. When the Court recognizes a right because it is deeply personal and important, governments are not free to force unwilling parties to participate in or support the exercise of that right. Rights created because they relate to deeply important issues that are “central to personal dignity”—and about which the Court believes people should be able to make their own decisions without “compulsion of the State”—necessarily also preclude government compulsion against people who choose not to participate in or support the exercise of those rights. Articulating this even-handed understanding of substantive due process rights in the marriage context could go a long way toward helping the nation reconcile same-sex marriage and religious liberty.

If (as seems likely) a majority of the Court is going to be making things up anyway, then I agree with Rienzi that religious liberty could much better survive under the “two-way street” model that substantive due process would invite.