Michael Knowles and Jack Posobiec Got It Wrong on the Same-Sex Marriage Case

By Alan W. Cohen

Michael Knowles and Jack Posobiec have got it all wrong about marriage, and especially about same-sex marriage. While they are correct in stating that marriage was created as a religious institution for the purpose of creating family and having children, morality had no role at the Founding of the United States. On Friday (October 31, 2025), Knowles interviewed Posobiec to reflect his view on same sex marriage, that the Supreme Court should reverse that decision. During the interview, Jack Posobiac was absolutely incorrect when he stated with certainty that marriage had “always been under state control.” As I explain in my new book, Free Market Marriage: Restoring the Foundation of American Society, marriage developed organically as a religious institution. In 2015, in Obergefell v. Hodges, the United States Supreme Court admitted that, at least for the first fifty years of the United States, that marriage was a purely private contract the somehow morphed into a public one. This was Free Market Marriage, something consistent with the Founding Documents. America was founded on two principals: Consent/Agreement and Religious Liberty, Commerce and Religion. We fought a Revolution to separate from a theocracy, a nation where status depended on your faith, your beliefs. Therefore, couples married in their faith, entering into private agreements with each other and their religious leaders. 

The Crown recognized only those married within the Anglican faith, who married in the Anglican Church. Thus, George and Martha Washington were legally married, but Benjamin and Sarah Franklin were not because they were Quakers. A Google search still shows that the Franklin marriage is still considered Common Law. The United States Constitution eradicated that distinction. In 1877, in Meister v. Moore, the Supreme Court affirmed that marriage was a private contract, yet eleven years later, in Maynard v. Hill,  four Justices would claim (as Jack did) that marriage had always been under control of the State, giving the State the same power as the King. How? In England, the King had two roles. He was Head of State and Head of the Anglican Church. In the latter role, his consent was necessary for anyone marrying in the Anglican faith. Therefore, in England, at least for those who married in the Anglican Church, marriage was “not an ordinary contract.” The Court then said the State was the same as the King and therefore, marriage in America was not “an ordinary contract” leading to State regulation. The Court adopted the law of the Anglican Church as the Law of the Land in direct violation of the Establishment Clause in the First Amendment. In so doing, the four self-anointed Justices usurped all three branches of government in both creating law and finding it Constitutional.

Based on that decision, for the next 90 years, State Courts and then State Legislatures developed modern Family Law out of whole cloth based on the laws of the Anglican Church and the principles of Chivalry. Then, beginning in the 1960s, those who were anti-religious took power and have been attempting to destroy what had been a religious institution in the name of freedom. How? By enforcing the duties of the Anglican Church only for men, but not for women, thus encouraging women to divorce and to have children out of wedlock, causing men to drop out of the marriage marketplace, also leading to a vast reduction in church attendance. For more than thee generations, marriage, what it means to be married, and how to be married, has been lost. George Washington, on the eve of the Constitutional Convention, wrote to a friend dreaming of a land of “Absolute Freedom.” But freedom is double-edged. Freedom requires responsibility. Just like weaning a teenager into adulthood, learning to be married means taking charge of your own life and living by your decisions. It requires virtue. As our Founders understood, our nation can only survive if it is filled with virtuous people.

Here is where Obergefell was wrongly decided: The issue was whether the State had the authority to determine who is legally married. The Crown, as the head of the Anglican Church had that authority. The Constitution forbids it. When the Majority made the finding that marriage began as a purely private matter, it made no effort to explain why. In fact, after making that finding, it was obligated to explain how the government, State or Federal, has any power to regulate marriage and divorce. That should have been the issue in the case, but whether same-sex couples are entitled to Equal Protection.

So, if Michael Knowles and Jack Posobiec want to restore marriage to its original definition, the only way forward for the Court to find that Maynard v. Hill was wrongly decided. Restoring marriage to a purely religious institution will open up the marriage marketplace and restore America to its Judeo-Christian roots. In the end, people are free to call themselves what they want. Restoring American society is too important, and restoring its foundation is critical if we are to save our nation from utter destruction.