"Perhaps the time has come to examine," Sen. Rand Paul (R-Ky.) wrote in an essay for Time, "whether or not governmental recognition of marriage is a good idea, for either party."
Paul, of course, is running for president. And in any election cycle prior to last week's Supreme Court's ruling that made same-sex marriage a 14th Amendment right, Paul's position would have marked the far end of the libertarian spectrum for Republican presidential hopefuls. For 2016, though, his stand may mark the center of the GOP-conservative coalition's approach to safeguarding religious liberty and checking the power of government.
For many, Paul's position — effectively, that government shouldn't be in the marriage business at all — will look like sour grapes. However, a number of libertarians and conservatives (including me) have urged this approach for years, long before the appellate courts became involved in the question of same-sex marriage. Some of us foresaw the danger to religious practice a long time ago, and now see Justice Anthony Kennedy's dismissal of the First Amendment right to free exercise of religion as nothing more than a right to "advocate" for traditional marriage as a large step toward a predictable nightmare for church and state alike.
The crux of the danger comes from the very cozy relationship between church and state when it comes to marriage. A lot of people say (incorrectly) that the Constitution mandates a total separation of church and state. But the First Amendment actually only provides two distinct but related prohibitions: Government cannot establish a state religion, and Congress can pass no law that infringes on the exercise of religion. That precedes the right to free speech, and stands apart from it, which makes the term "exercise" broader than mere advocacy — it explicitly covers action in service to faith.
This service routinely intersects with government. Schools run by religious organizations operate in parallel with those in the public sector. Religious hospitals and clinics, especially those that have the poor as their main focus, operate within the parameters of government safety-net programs. Religious refugee missions often coordinate with state-run programs, and certainly have to work with public-sector bureaucracies. Religious adoption agencies rely on government sanction to provide creative alternatives to the official child-service bureaucracies. The George W. Bush administration highlighted the value of these partnerships with its efforts to promote "faith-based" alternatives, an effort that did not get the same level of enthusiasm in the Obama administration.
But nowhere in the social service realm are government and religion closer than in marriage. In every jurisdiction in the U.S., ordained ministers have the authority to certify that a marriage has taken place, once the necessary licensing has been completed by the state or local jurisdiction. Even more than in the above examples, the minister acts in place of the state, as its agent in the finalization of the legal process. Rather than having a strict separation of church and state, the two have been joined in wedlock all along, especially when it comes to marriage.
As early as 2008, I warned that this issue would cause trouble for those faith-based organizations, not the state. At first, the argument focused on limited-government conservatism and the fact that government had already made a mess out of marriage with no-fault divorce, but that moved quickly to warning that a redefinition by legislative or direct-vote means would quickly put the government camel's nose in religion's tent, with potentially existential consequences for the latter.
The Supreme Court's sweeping gay marriage ruling makes the problem exponentially worse. By declaring government recognition of same-sex marriage a constitutional right rather than just voting it in as a popular decision for government policy, it sets up the state to intervene in the doctrine of houses of worship to force a change in their definitions of marriage. Even RFRA may not suffice to protect religious liberty in this case, now that the balancing test pits one constitutional right against another. Already some are calling for churches that refuse to comply to get penalized through the loss of tax exemptions, and Kennedy's opinion makes it clear that the majority only envision the rights of religious groups and individuals to "advocate" for traditional marriage. For many smaller groups, a loss of tax exemption would wipe them out — and all of the other good work they do in their communities. Those who comply would exist in a similar space as "official" churches in authoritarian nations such as China, where compliance with government edicts is the price to pay for avoiding closure by the state, through one means or another.
Paul's proposal offers the one way we can head off that kind of collision between the First Amendment right to free exercise of religion and equal treatment under the law. He's not the first to pose it as an explicit public-policy choice. Same-sex marriage proponents offered it as a potential referendum in California in 2009 in protest of the passage of Proposition 8, and an opponent of same-sex marriage in the Oklahoma legislature announced that he would introduce a bill for the same idea somewhat more seriously in 2014. It would keep government intervention in domestic relationships between consenting adults limited to enforcing contracts, a task for which self-government is designed, and keep them out of the business of official recognition and regulation of love, an arena few in either camp would normally leave to bureaucrats in any other circumstances. Those who wish to have their unions blessed as marriage could test the market for houses of worship with definitions that embrace those relationships, while those who do not wish to participate in such events could just be left alone.
That would bring liberty to all parties, and bring us closer to the ideals of freedom envisioned in the Constitution. It certainly beats having the imperious hand of government forcing religious communities and individuals to participate in government-defined celebrations of love under threat of official punitive sanctions for resisting.
"Perhaps it is time to be more careful what we ask government to do," Paul advises, "and where we allow it to become part of our lives." Those who have kept insisting that government define marriage in the traditional manner should take heed of those words — and maybe we all should recall this in contexts other than marriage, too.