For Religious Freedom, Separate Marriage and State

U.S. Supreme Court building.
U.S. Supreme Court building. (Photo credit: Wikipedia)


As the Supreme Court takes up the matter of marriage apartheid — an institution of forcible segregation and exclusion aimed at same-sex couples and codified in state laws which defy both the Constitution’s “full faith and credit” clause and its 14th Amendment’s “equal protection” clause —  its supporters once again rally to the banners of family and marriage, feigning support for the very institutions they assail.

“We will not obey!” thunder headlines covering their latest barrage, an open letter signed by numerous American religious leaders. But those headlines lie. The actual content of the letter consists not of a refusal to obey others, but of a demand that others be made to obey them. They want their own religious beliefs to remain codified in law at the expense of all whose beliefs differ.

They call for this establishment of (their) religion, naturally, in the name of “religious freedom.” It seems there’s no concept the anti-marriage, anti-family bigots aren’t willing to turn on its head.

There’s certainly a religious freedom issue at stake here, but the opponents of same-sex marriage are opponents, not supporters, of religious freedom.  For example, until it was struck down, Missouri’s anti-marriage law (passed in 2004 with strong support from this same crowd) provided for a jail sentence of 10 days and a $500 fine against clergy who officiated at unapproved religious ceremonies — “unlicensed” same-sex weddings.

Are the opponents of marriage and family sinned against as well as sinning? Certainly. They don’t believe they should be enslaved to bake cakes (or pizzas) and so forth for couples and families of whom they religiously disapprove. I agree. They shouldn’t. But then, the anti-marriage bigots and the pro-slavery bigots are peas in a pod. They’re both fighting for control of others, not for the freedom of all.

The solution to this whole set of problems is simple: Just as we’ve tried to separate church and state, let’s separate marriage and state! If that’s not feasible in its entirety, then let’s do so to the greatest degree possible.

Instead of government-approved, “licensed” marriages, let the civil form of marriage be by contract. The terms of those contracts can be whatever the parties negotiate. Although I suspect most of them would tend toward the current norms, there’s no call to require that. Different strokes for different folks. The only necessary state involvement, then, would be adjudication of contractual disputes (if even that — the contracts could specify private arbitration).

As for those of particular religious persuasions, let them and their churches celebrate whatever weddings and recognize whatever marriages they choose, and not others (including in their commercial relations). This is the only right which they might reasonably demand others respect.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism ( He lives and works in north central Florida.




  • That’s pretty much the idea I’ve been floating over this issue. Taken a lot of heat, especially from the LGBT in-your-face type folks for it.

    • Fred,

      Yeah — that’s the “identity politics” problem.

      Of course you know that, as with most things, 90% of “the LGBT community” are just people, most of them reasonably well-rounded and concerned with lots of things other than their own sexual orientations and politics, and just wanting to be treated with the normal respect accorded everyone else.

      But when from any larger community you distill a specifically political bloc centered around this or that personal characteristic (race, religion, sexual orientation, etc.), there will always come a point at which that political bloc transitions from seeking equal treatment, an end to oppression, etc., for the members of the larger community, to demands for privilege.

      That’s because political “leaders” don’t want to give up whatever wealth and power has come to them through the bloc’s existence and advancement.

      • Socrates Wilde

        Bingo. The biggest factor in my alienation from the San Francisco LGBT community. When the issue comes up I get treated as if I were the worst anti-gay evangelical.

  • Clifford Jones

    Thank you. It’s been 40+ years of whistling in the wilderness but I finally now have this in print, to show people I’m not the only one ‘out of my mind.’.

    People are so ingrained with the statist mindset they fail to see the real issue: “government benefits.” Period.

    It’s not about the Bible, it’s not about what “marriage” means, not about morals or any visceral reaction one may harbor upon consideration… it’s about government benefits.

    If we are in fact “free” then all it takes is to act like it. So long as you’re not initiating harm to anyone else’s life or property, where’s the issue?

    The “issue” is “unequal treatment under the law.” Looking at it this way, minus the moral wrangling, and the answer is “stupid-simple” isn’t it? Just get the “law” the h#ll out of the picture.

    But thanks to the state injecting itself into this very private matter, a form of apartheid was created wherein only those labelled officially “married” by the state may make claims on benefits “protected” by the state: insurance policies, filing tax “returns” jointly, gaining consideration and intervention in ‘domestic disputes’ (ie divorce) and the like.

    It will take a lot of painful time and effort to unwind the fungal tendrils government has sunken deeply into this far reaching matter. But it must be done, and the sooner we get started the better. I’d rather shoulder any burdens in my lifetime rather than leave this mess for my lovely grandchildren to contend with.

    If you have a problem with a couple of the same sex having a relationship they wish to call “marriage,” then I suggest the problem is yours…

    But if that couple (or triple, or whatever) gets militant about my sanctioning their relationship, or gets in my face demanding special consideration then THEY have a problem…. BUT…

    The above ‘live and let live’ only works once the government is removed from the equation.

    I really don’t see why it should be such a complicated matter, just quietly answering a question when applying for a job, or whenever the question may arise, should be enough. Isn’t your word worth anything? The Golden Rule anyone??

    The reason this issue IS “complicated” and will not be fixed, as I see it, is that those demanding “equality” don’t actually want it. With equality and freedom comes responsibility.

    It always appears to me that the more militant one is about an issue, the less likely they are to assume personal responsibility for any consequences surrounding the issue.

    Be that as it may, the solution is to remove any distinctions made in the “law” based on any status: married or not, black, white, citizen or not, two legs or one… There should be no benefits or sanctions arising from simply being.

    If I happen to detest “gay couples” or feel discriminated against by people with functional legs, the government is not where I should be going for recourse.

    If the gay couple doesn’t want to hear it from me, or the store owner doesn’t see fit to accommodate me, my recourse is to go pound sand, or spend my money elsewhere, respectively.

    Thanks, Thomas. I’ve always enjoyed your work, really appreciated.

    • Clifford,

      Thanks for your thoughts. Glad you liked the piece!

  • Socrates Wilde

    I loved this one, too.

  • Malcolm Smith

    I don’t think you have thought this through properly. Marriage brings certain rights and responsibilities which must be enforceable. It differs slightly between jurisdictions, but as a general rule, your spouse is your next of kin, you have to provide for your spouse both during your life and in your will, and a woman’s husband is presumed to be the father of her child unless proved otherwise, with a duty to support him or her. If the state retreats from enforcing these duties, a lot of injustice will take place. But in order to do so, it must have a good idea of who is married and who isn’t. This implies some sort of register. It also means they have to make some restrictions on married eg age, consanguinity, the number of spouses, and, of course, the sex of spouses. If anyone can claim to be married, and anyone claim that the marriage has ended, chaos and injustice will result.
    Apart from that, there is the false assumption that marriage is somehow a creation of the law. In fact, it is the basic institution of society, which predates the law, and even the human race. The law does not create it; it merely recognizes and regulates it for the common good.