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To Protect Religious Freedom, the Supreme Court Should Abolish Marriage As We Know It

12/10/2012 01:47 pm ET | Updated Feb 09, 2013

Since last week, when the Supreme Court accepted two crucial cases on gay marriage, speculation has run through the chattersphere like wildfire. The Court will let voters decide. The Court will let the states decide. The Court will reach a split decision. The Court will strike down discrimination across the board. You name it -- except the one decision the Court should be sure to make is nowhere in sight: to end the marriage of "marriage" forever.

That's right. Marriage as we know it must end in divorce. Leaving the court next June should be two newly single parties. Allow me to explain.

While I am an unwavering proponent of equal rights for consenting adults of any sexual orientation, I agree with the National Organization for Marriage (NOM) in one respect: there is an issue of religious liberty here. To wit, the government has no business entangling itself with religious conceptions of marriage.

It is high time to take separation of church and state to its logical conclusion. In ruling DOMA and Prop 8 unconstitutional, the Supreme Court should prevent government from ever again meddling in, endorsing or in anyway recognizing the religious ritual of marriage. At the same time, of course, the Court should reaffirm and broaden the existing institution of civil marriage to optimum extent. What is that? I'll return to the question in a moment.

First, we must deal with NOM's bogus arguments. It pretends to be an organization with the best interests of children at heart. To defend their interests, it says, we must prevent anyone from seizing "the right to redefine marriage for all of us." What a load of bovine manure.

Marriage is a human universal. On the one hand, this puts the lie to the quaint notion that the Judeo-Christian God instituted it. Long before the spread of Abrahamic monotheism, marriage existed in one form or another all over the world. There was marriage in Japan before the missionary St. Francis Xavier docked at Kagoshima in 1549. There was marriage in Hawaii before Captain Cook arrived. There was marriage in India before the Gospels were written. People as isolated as the Maori and the Inuit practiced marriage long before the missionaries got to them. Men and women in West Africa married before the Christian and Muslim slavers arrived to break them up.

On the other hand, a "human universal" merely denotes a tendency to occur similarly in all societies. Music, too, is a human universal, but this neither means that everyone is a musician nor that all music follows the same rules of composition. Uniformity does not hold for music or marriage. To claim a particular definition of marriage to be the traditional one is either to be pig-ignorant or to presume that one's own religious tradition holds supreme. Neither makes for good public policy.

So, naturally, the opponents of equal rights also pretend to practice science. They claim that children do better when raised by a mother and a father rather than by a same-sex couple. Is this true? Well, it must be admitted that social science cannot easily answer the question. There have been too few well-designed studies to call this settled science. But what evidence there is tends to rebut the NOM claim.

Regardless, it is no basis for public policy. NOM could, with far stronger evidence, assert that the children of those making more than $100,000 a year do better than those making less than $30,000 a year. Would such a claim, even if supported by a stack of studies, be grounds for outlawing marriage among the poor? Talk about a eugenics policy gone mad!

Studies produce averages. There are children of poor parents who do spectacularly well (e.g. Steve Jobs) and there are children of rich parents who are miserable screw-ups. Paris Hilton, anyone? How about Umar Abdulmutallab, aka the Underwear Bomber? Both, incidentally, were raised by parents not only wealthy but traditional and strongly religious to boot.

What it all comes to is simply this: Fairness demands that society allow competent, consenting adults to form domestic relationships free from invidious discrimination that privileges some and punishes others. Of course, the state has a legitimate right to intervene on behalf of children who may otherwise suffer harm. For example, when parents deluded by claims of faith healing withhold medical treatment from a diabetic child, the state absolutely should intervene. However, government cannot rightfully prejudge what classes of parenting relationship will be best for children, anymore than it can pick in advance who will make the best parents.

May it please the Court, I submit the time has come for civil recognition of domestic relationships - regardless of sex or parenting plans -- to be the law of the land. In Marriage v. Marriage, grant an absolute decree of dissolution.

As often happens following a divorce, one of the parties should revert to an earlier name. "Civil marriage" might sound like a discount version of the "real" thing. Instead, let's adopt "espousal" for the civil institution. This would have the nice side-benefit of eliminating gender labels. Espousal produces spouses. Who plays what role at home? That's nobody's business but their own.

Let the churches, mosques, temples and covens do what they will with their own marriage rites. They should have no obligation to recognize anyone's espousal. By the same token, no government authority should accept a religious rite having any legal weight whatsoever. Now that, my fellow citizens, is fairness all around.