GOVERNMENT SHOULD NOT “RECOGNIZE” MARRIAGE
By Attorney Jonathan Emord
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.
California’s 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.