Pathetic Policy Discourse

There are a lot of examples of what happens when those making policy don’t know what they are talking about, but here’s one that just annoys the hell out of me every time it comes up.

The New York legislature is preparing to vote on whether the state will recognize same-sex marriage. The Times reports that one of the “concessions” being demanded is explicit language protecting churches that refuse to officiate at such unions.

I know I harp on the importance of constitutional literacy, but this is a perfect example of what happens when even the most basic, rudimentary constitutional knowledge is absent.

The First Amendment religion clauses not only protect all of us from governmentally-imposedĀ  religion, those clauses also protect the free exercise rights of religious organizations. That means–at a minimum–that government cannot force churches to engage in activities that are counter to their beliefs. Churches and other religious organizations are even exempt from civil rights laws when hiring for religious positions. Bottom line, it would be unconstitutional to demand that clergymen officiate at same-sex weddings, and any effort to sue them for refusing to do so would be immediately tossed out of court.

Furthermore, the “marriage” that government recognizes is civil marriage only. Government classifies people as married for purposes of determining who is entitled to the 1000+ legal benefits that accompany recognition of that contractual relationship. Civil and religious marriage are different. Governments do not and cannot “sanctify” a marital union–for that, people have to go to their respective churches (a growing number of which are willing to do so). Our constitution separates church and state (no matter what Michele Bachmann and her ilk think), and that separation means government has no authority over religious doctrine and belief.

When political actors demand statutory “protection” for churches, you can be sure the actor is either dishonest or ignorant (not that these categories are mutually exclusive). Granted, adding language that duplicates the existing constitutional protection doesn’t require proponents of same-sex marriage to give anything up. But it implicitly suggests that–absent such language–the government could make the demand in the first place, and adds to the ever-growing stupidity of our national discourse.


  1. Does anybody even imagine that just because Baptists are perfectly legal that the Catholic Church is required to perform marriages for Baptists? Or that Baptist churches are being forced to marry Hindus?

  2. IANL, but my immediate reaction was exactly the same. Requiring that the language be added also feeds the ridiculous fiction that Christians in the United States are suffering persecution.

  3. Ron Paul isn’t far off, suggesting that government simply get out of the marriage business. If Fred & Alice (or Fred and Bob) want to enter into a relationship that has some set of legal consequences, let them make a contract, and let government, to the extent it chooses, enforce the consequences of the contract. As it stands now, government mostly defines the contract, and the parties are stuck with terms they might not have chosen, left to their own wishes. If a couple’s ‘God,’ demands certain provisions, and that’s important to them, they’ll be included anyway.

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