Church, State, and Marriage in New York.

Mitchell Bard, in a post at HuffingtonPost, takes down New York State's recent refusal to grant same-sex couples the right to marry. The decision is unconstitutional, he says:

Marriage has two essential elements to it. First, it is a union recognized by most of the world's major religions as being between a man and a woman. Second, and completely separate from the issue of religion, marriage is a contract between two individuals recognized by the 50 states. You will note that I identify the second element as completely separate from the first one because of a nifty little amendment to the U.S. Constitution (the first one, in fact) that reads, in relevant part:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

Thanks to more than a century of U.S. Supreme Court decisions, we can safely conclude that, among other things, the First Amendment prevents the government (states are bound by the First Amendment via the Fourteenth Amendment, ratified after the Civil War) from enforcing religious decisions in carrying out its business. As such, it is not incumbent on the states to enforce religious laws on marriage, nor may the states force religious leaders to carry out certain policies that violate their faiths.

So there is religious marriage (based on the rules of a couple's faith) and state marriage (essentially a civil contract under which certain rights and responsibilities become enforceable under state law).

Now, there is no doubt that many American religious leaders feel that the marriage of two men or two women violates the rules of their faiths. While I can't support their bigoted views, I would be quick to defend their right not to marry two men or two women. That is a decision the state has no place getting involved in. And religions are not bound by any responsibility to treat their followers fairly or to extend them equal rights. If Catholics do not want to let women become priests, or if Orthodox Jews do not want to allow women onto the bimah (altar) during services, or if any other religion chooses to extend fewer rights under the rules of the faith to one group or another, that is the right of those religious institutions to do so. It's up to the members of the religious institutions to decide if they want to be part of a religion that discriminates in these manners.

But the government doesn't enjoy the same leeway as the religions. In fact, the Constitution, federal law and state law are filled with provisions that assure just the opposite, that every American should be treated equally under the law. So if a state decides to grant the right of two men or two women to marry, that is the state regulating state business (and I would argue it's both the legal and moral obligation of the state not to pick and choose to whom it extends these rights and responsibilities). The state isn't telling any priest, reverend, rabbi or imam to marry two men or two women, nor is it requiring the religions to accept the couples as being married under their faiths (in the same way that if a Jew and a Baptist are married by the state, the state doesn't require Orthodox rabbis or Baptist ministers to recognize the marriage in their faiths).

In other words, religious marriage is the domain of the religions, and state marriage is the domain of the states. And under the First Amendment, the states are not supposed to force religious rules on its people, nor are they to interfere in the beliefs of the religions. Seems simple enough.