The Problems With Government Marriage

Last year Scott Shackford explained the
difficulty in
divorcing government and marriage in the United States, which
came down to the way common law has wed the two, especially in the
case of family law. Nevertheless, it may be worth examining the
activist role government plays in marriage—not the way the law
protects the rights of family members and creates mechanisms for
contract enforcement but the way in which government inserts itself
into the process by which individuals choose to enter a marriage
contract.

Every jurisdiction in the U.S. has some sort of government
functionary with whom you can file for a marriage license. Anything
the government says it needs to verify about the marriage should be
accomplishable at that step. Is there a reason for the government
to insert itself into the ways in which individuals and their
communities choose to recognize and celebrate entry into marriage
contracts?

Sometimes government is its own reason. In Virginia, for
example, a judge has to appoint an officiant for you (occupational
licensing taken to a new level). That recently led to a
non-religious couple looking to get married being told by an
officiant they were sent to by a judge that
he wouldn’t marry them because they didn’t believe in God.

The court says the judge gave the couple the names of two
officiants, one for religious ceremonies and one for civil
ceremonies. The couple was looking to get married in the courthouse
and have a ceremony later. Yet that couldn’t be accomplished
without the government insisting they go to a government-recognized
officiant and come back to have the government recognize their
marriage.

In North Carolina, meanwhile, opponents of same-sex marriage
have used the tools of government to ban it in the state. In order
to enforce the ban, the state has made it a misdemeanor for a
minister to marry someone who doesn’t have a marriage license.
Several religious groups including the United Church of Christ and
the Alliance of Baptists are
suing to have the law overturned on First Amendment
grounds.

Religious opponents of same sex marriage have mocked these
group. “It’s both ironic and sad that an entire religious
denomination and its clergy who purport holding to Christian
teachings on marriage would look to the courts to justify their
errant beliefs,” said Tami Fitzgerald, director of the North
Carolina Values Coalition, apparently oblivious to the fact that
his side has done the exact same thing. Just as government should
not have the power to compel a church or other religious or civic
organization to marry anyone they don’t want to, neither should it
have the power to prohibit such organizations from marrying anyone
they want to.