GOVERNMENT SHOULD NOT "RECOGNIZE" MARRIAGE
Attorney Jonathan Emord
Author of "The Rise of Tyranny"
August 16, 2010
Marriage is a religious institution. In my faith, it is ordained of God and between a man and a woman. Freedom of religion, the right to hold religious views of one kind or another, depends on the absence of government and, most particularly, of government constraint, coercion, and cajolery. When we allow government to “recognize” religious institutions, such as marriage, we invite the establishment of orthodoxies, where government can attach benefits or sanctions to the exercise of religious practices; we invite, at a minimum, debasement of religious freedom and, ultimately subjugation and destruction of it. No benefit or sanction can legitimately be imposed based on state recognition of religious institutions without having a coercive effect on religious free exercise generally. Laws like Proposition 8 in California (that prohibit the state from recognizing same-sex marriages) are thus misplaced because they invite more government scrutiny of the religious institution of marriage, not less.
citizens would have been better put at a disestablishment of the state
on the question of marital recognition than of casting their lot in
favor of government action to limit “recognition” to unions
between a man and a woman. It would have been better for the rights
of man had California voters enacted a state Constitutional amendment
that forbad the government from “recognizing” marriage at
all and instead limited the government to enforcing marital contracts,
without regard to religious denomination. In short, the legitimacy of
marriage is a religious question. State benefits and sanctions should
never hinge upon whether two people living together are “legitimately”
married or not. The legitimacy of the marriage is not a proper question
for the state; it is a religious question.
The problem created by “recognizing” only certain marriages is compounded when real life circumstances are encountered in the courts. So, for example, when two people have been living together out of wedlock (whether heterosexual or homosexual) and their property interests have become intertwined, their separation will involve questions of right as to who gets what and courts are forced to determine an equitable divide. That determination must occur whether people have chosen to be married or not and whether they come to the court as man and woman or of the same sex. To deny the presence of such problems or to deny relief to people predicated on a dislike for their lifestyle choice is to deny equal justice under law.
It would be presumptuous of me to impose my religious beliefs on anyone else through force of law. Likewise, others may not rightfully impose their religious beliefs on me in reliance on the power of the state. The essential problem with state recognition of marriage, whether of marriage as between a man and a woman or also between same sex couples, is that it puts the state in the position of sanctioning and according benefits based on a bias in favor or against a particular religious institution. If the state “recognizes” same-sex marriage, it violates most, but not all, Christian doctrines and biblical teachings on marriage as between a man and woman. If the state “recognizes” only heterosexual marriage, it violates certain contrary religious doctrine, causing those unions not recognized to be disfavored.
In our pluralistic country, there can be no establishment of religion but there must be tolerance of all religions, equally. At the time of the founding of the republic, no establishment was allowed (or could it have been) because the Catholics in Rhode Island would not tolerate imposition of a protestant faith, nor would the particular protestant denominations permit establishment of a single religion antithetical to their views, such as the Church of England, nor would Jews in the country countenance an anti-semitic state. The consensus among the Founders was for all religions to be given broad tolerance, leaving state intervention to those instances when law enforcement became necessary to prevent harm. Peaceable religious practice, although odious to some, would be tolerated by all with the law showing no favoritism. The state would be blind as to religious preference but would tolerate religious practice in its presence, discriminating against none in the process.
the opening prayer before Congress and the Supreme Court was non-denominational,
revealing tolerance for religion equally. The view that “In God
We Trust” be removed from coinage and that the image of Moses
holding the Ten Commandments be stripped from the front entrance of
the United States Supreme Court or from the bronze relief inside the
Supreme Court building misapprehends the tolerance for religion in the
face of the state. So long as government does not compel allegiance
to any one religion or religious practice, it does not establish a religion
but it does violate freedom of religion when it fails to tolerate practices
of religion that do not interfere with the operation of government.
So, if before I present oral argument in federal court, I say a silent
prayer, it is incumbent upon the government to tolerate my religious
practice. Likewise, if the majority of members of Congress wish for
a Christian minister to present a nondenominational prayer at the start
of a session, that too must be tolerated. It is further proof that the
people are sovereign. The failure to tolerate religious practice is,
itself, the establishment of an atheist orthodoxy because it compels
There is no legitimate role of government in “recognizing” marriage precisely because marriage is a religious institution and what is or is not a “legitimate” marriage is a question for each of us to decide based on our own religious preferences. Government has no proper role or interest in determining the validity of a marriage, in recognizing one religious union over another, although the judiciary is properly available to determine the enforceability of any contract of marriage (regardless of religious denomination) and to protect children from moral depravity or other harm. The only legitimate restraint on religion that the state can justify is one to ensure that under the guise of religion individuals do not engage in practices that cause injury to themselves or others, whether those individuals are asexual, heterosexual, or homosexual.
Government has an interest in the health of adults who cohabitate, when one or more has an infectious disease, but that is true whether the couple is heterosexual or homosexual. Government has an interest in the welfare of children, protecting them from abuse or exposure to behavior or conduct that contributes to their delinquency, but that too is true whether the couple is heterosexual or homosexual.
“I am not a friend to a very energetic government,” said Thomas Jefferson, “it is always oppressive.” Our battles over questions of religion are best left to the marketplace of ideas. The government has no legitimate power to affect whether two men or women live together or whether a particular man lives with a particular woman in or out of wedlock. So long as those who live together do not harm each other, do not harm the rest of us, and do not harm children, the state has no proper role in directing how they live or act.
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Each of our freedoms depends on respect for the free choices of others. Thomas Jefferson defined well the only bounds which individual freedom of choice ought to suffer in a nation that means to be free: “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”
© 2010 Jonathan W. Emord - All Rights Reserved