Gary J. Simson (Mercer University School of Law) has posted Religion by Any Other Name? Prohibitions on Same-Sex Marriage and the Limits of the Establishment Clause (Columbia Journal of Gender and Law, Vol. 23, p. 132, 2012) on SSRN. Here is the abstract:
This article considers whether laws prohibiting same-sex marriage should be found to violate the Establishment Clause. After explaining the nonendorsement principle that the Supreme Court has recognized as central to the clause, the article discusses the limited case law and commentary that explicitly address the constitutionality of same-sex marriage prohibitions under the Establishment Clause. It then examines the various reasons that opponents of same-sex marriage have offered in support of a ban and concludes that those reasons provide strikingly little justification for laws banning same-sex marriage.
After discussing three substantial reasons for allowing same-sex couples to wed, the article attempts to make sense of a legislative decision to prohibit same-sex marriage -- a decision that, in effect, gives priority to the tenuous reasons for prohibition over the weighty reasons for legalization. A covert purpose to endorse religion is not the only possible explanation for the legislature's decision. The article suggests, however, that it is the most plausible explanation largely because, perhaps paradoxically, it is the one most in keeping with the deference that lawmakers are generally owed.
The article then turns to three possible objections to a conclusion that prohibitions on same-sex marriage violate the Establishment Clause. Two objections relate to ambiguities in the endorsement test. The third arises out of the possibility that, in the near future, the Supreme Court may replace the endorsement test with a less demanding test predicated on coercion. Lastly, the article considers the implications of its analysis for the federal government's contribution to the same-sex marriage debate: the Defense of Marriage Act of 1996.