Hey Supreme Court, Get Out of the Marriage Cases

04/21/2015 02:14 pm ET | Updated Jun 20, 2015

Religious freedom issues continue to roil the United States. The gay community has demonstrated that any assertion of religious belief will be given little leeway or respect if it is used to exclude or disadvantage of gay couples.

The assertion by Indiana of such an unnuanced right to discriminate was an attempt to palm off hate and exclusion as freedom. Appropriately, the effort failed but not before Hoosiers set back the cause of religious freedom in ways that are certain to trouble the culture and that give grim reminder of the judicial attitude that once saw no inferiority or inequality in the separation of the races -- claiming in ways too incredible for a 21st-century mind to comprehend that any perceived inferiority was a figment of the black man or woman's imagination.

Unfortunately, disingenuous views that are outrageous provoke outrage. Too many black and white shop owners have sifted through the ashes of a lifetime of work and investment when their business became the serendipitous target of mob violence stirred by rank discrimination disguised as freedom. Retaliation that harms the innocent or that is unwilling or incapable of appreciating religious or political view different than its own is as wrongful as the original Indiana religious overreach. That being so, there is an important message in between the lines of the Indiana fracas for the Supreme Court of the United States: GET OUT OF THIS CASE NOW!

The reason to get out is to honor the judicial role as it has existed throughout our history as part of the separation of powers. It is also to take cognizance of the likelihood that the humanity and acceptance of homosexual persons generally into the ranks of the married will achieve greater sympathy and understanding if it is democratically achieved rather than judicially coerced.

Returning the cases to the federal courts without an opinion on the merits is to resolve the case consistently with the Constitution insofar as it would be acknowledging the preeminent role of the states which should be respected by every level of the federal judicial establishment. It is not the duty of the federal courts to interpret state law, and while significant aspects of federalism have been effaced, this federalist principle is not one of them.

A judicially declared victory for either side would do more harm than good. Regardless of how the case is decided; a claim that the court was deciding it is a matter of law would provoke more suspicion and hatred than it would attract additional allies. Substitution by the court of a pretended legal principle that claims one side of a closely divided question to be intrinsically correct as a matter of legal principle that has the capacity to divide with hatred and suspicion. In other words, if the Supreme Court follows the lead of the briefing on either side for or against same-sex marriage, it will be writing that there is a constitutionally decreed or correct principle. While scholars of the natural law may claim such intrinsic principle does exist, and that it is only the shortcomings of man that fails to grasp this meaning, it actually matters little whether the cause of our failing to see a consensus is an uninformed mind or an unformed agreement among members of the community, either way, until the consensus is discovered or forged, it is a misuse of the law to declare one to be followed.

Every one of its misbegotten attempts to resolve a closely divided cultural matter as a matter of legal principle has ended very badly and damaged the country; this was true in case of Dred Scott, who was denied his freedom by the most twisted illogic in disregard for fundamental principles of subject matter jurisdiction, and it was likewise true in the abortion cases where a matter of philosophy or theology mutated into legal claim thereby dividing the nation in ways that it pays for repeatedly and in almost every substantive area of the law.

Supreme Court involvement means that one side or the other of the same-sex marriage debate will be declared unworthy. Oh yes, the Court will be more diplomatic in its terminology -- perhaps even with sweeping rhetorical flourish if Justice Kennedy writes the opinion. No amount of flowery rhetoric, however, can obscure the hollowness of the legal core of any attempted legal answer to the same-sex marriage question. It is a question of policy to be informed by anthropology, religion, politics, science and the will of the general constituent. The briefing in the Court adds nothing to the arguments that have been made repeatedly. These arguments merely illustrate that the court has no special competence to assess the comparability of marriage forms. Indeed, one is tempted to say that the court should look outside the briefing filed for greater insight into the underlying humanity of the issue that it has taken.

Where should the Court look for this larger, less academically varnished, but humanly invaluable insight?

One very excellent source is a recent symposium on religious freedom conducted by the Center for Constitutional Studies at Utah Valley University (UVU). If you never heard of UVU, you will. This is a university that is doing things differently. While it's not always clear to me whether all the attempted differences are by wit or accident, the symposia that they arrange inevitably has dimensions and participants that leave the usual academic teaching methods wanting. UVU walks with academic kings and scholars, yet never loses the common touch. The insights of the UVU center on the Constitution may not be the dance card of every elite institution, yet scholars from top schools have been impressed with the manner in which UVU gets sophisticated and complex treatments onto shelves that are just as likely to be populated with Hummel figurines and other smiling tchotchkes as books.

The symposium at UVU included in addition to myself some of the leading litigators in the contests over same-sex marriage; historians and authors of presidential biographies from the finest schools and think tanks, and perhaps the greatest teacher of them all, one that far eclipsed anything I had to say about the importance of interfaith diplomacy, Mr. David Archuleta, winner of multiple talent contests, including a near victory on American Idol.

The academic portions of the symposium were well conducted, even if unavoidably, repetitive of things one can read in numerous places; these materials are foundational, and obligatory for scholars to be attracted to UVU. No doubt these writings will be put up online by the University. Hopefully included in the materials will be an essay by UVU's young energetic president, Matthew Holland that thoughtfully and provocatively traces the evolution of Thomas Jefferson from a self-centered rationalist to a president greatly moved by the concept of agape or love.

How President Holland finds the time essay writing of this quality is mysterious since he seems to be everywhere at once overseeing a state institution of close to 9,000 -- though because UVU is open to a far wider range of students of every age and experience, the certitudes of enrollment at other schools are less present. This yields a University that by design has a more vibrant, dynamic base that hardly mirrors a typical four-year college. Perhaps it is that dynamism that inspires the university chief to write, but darn he has to sleep too!

The participants in the religious freedom symposia were recruited by Richard Griffin, the director of the Center for Constitutional Studies and whose nervous energy, itself, seems capable of powering a small city, but is capable of orchestrating programs like that on religious freedom with such dexterity and attention to detail that one scarcely notices that Dr. Griffin was born without hands, a disability to which he and his lovely wife Bonita pay no attention.

Pres. Holland and director Griffin gave this erstwhile ambassador a chance to motivate an audience of well over 3000; a number several hundred multiples greater than any assembly I or most academics could ever hope to muster. And no previous host ever risked placing my mug on a Jumbotron.

I gave it a go, but frankly, my remarks on the importance of interfaith diplomacy being incorporated into US embassies as a necessary predicate to any hope for democracy had very little chance of warranting the attention of so many sweet young heartthrobs would come from far and wide to see Mr. David Archuleta. Before introducing you to this extraordinary young man let me say that one of many reasons to be pleased by Secretary Clinton's decision to seek the presidency is her understanding and commitment to interfaith diplomacy notwithstanding some entrenched State Department bureaucrats that mistakenly try to ignore religious difference or even fail to understand religious significance to the divisions and fighting that must be settled fairly if any semblance of democracy and a lasting peace is to be achieved.

Yadda, yadda ... I could almost hear the polite thousands in the dark before me. Even my tribute to fallen colleague and friend Ambassador Chris Stevens provoked silence, and my ever more embellished tale - true at its core though it is - of my embassy's rescue of hundreds of Americans and foreign nationals from behind the shooting lines in Libya on a catamaran scarcely merited a sigh. The polite UVU inspired audience listened and were even more gracious to say nice things after, but any sane person of 19 or 20 could've told me that every minute I frittered away on inter-faith advocacy was delaying the appearance of Mr. Archuleta, who truly is an American idol to many who share the designation of twenty something with him. On that night, it was David Archuleta's youthful voice that would be heard.


And so it was. Mr. Archuleta is more than a fine singer. He's a young man who bears good fortune as an opportunity to witness to faith. Given opportunities for fame and recording contract very early in life, he has also confronted challenges from those who would seek to tempt him away from his Mormon faith, a corresponding commitment to family, and a rather unsullied view of human nature. Mr. Archuleta sang his favorite songs but in between, he laid bare before an impressionable audience of people his age and younger how more than a few seemingly more knowledgeable adults significantly older than him had been a ready source of bad advice urging him to make equally bad choices that would inevitably draw him away from truth.

With humility, Mr. Archuleta identified the choices that he made and the moral dilemmas he encountered in making them. I suppose in the balance I view at my advanced age, David Archuleta's life choices in the context of great blessing and affluence to be less consequential than the 400 lost lives of irregular migrants from Africa that drowned that very day in the Mediterranean as they have been doing for years in their quest to escape violence on the African continent. During my foreign service, Mrs. Clinton urged me to help and resettle many similar migrants, and we did, but as consequence, when migratory death continues and the world is seemingly oblivious, I find thinking of anything else an incommensurate problem. But the truth of my sorrow in remembering the hopeful faces of migrants who did navigate to safety despite a largely uncaring world is really just a different glimpse of the truth that was testing David's life. However, these different calls to faith are; they are tests to be met, and in meeting them to teach. Being pressured to sing John Lennon's lyric that invites imagining no heaven, David steadfastly refused so as not to leave his young audience confused as to his own belief. He chose the lyric in the John Lennon song "Imagine" that did not place him in the position of endorsing a world without God; he chose to take up a Mormon mission in a place of disadvantage even though it meant passing up generous contracts and a career momentum that few people could resist; and home from his mission and still filled with the zeal of faith, he took to the 140 character Twitter means of communication to promote among young people chastity -- not in the way his church or mine tends to do it -- by pushing an unworldly abstinence in ways that seem to have no appreciation for human desire or the power of young intimacy, but by plainly sharing the belief that intimacy alone is far less than the fullness of love if one is seeing the truth of the matter.

Unfortunately for Mr. Archuleta, he then drew a line based on the idiom with which he was familiar to suggest in a double tweet that the fullness of love is found in the lifetime, procreative commitment enjoyed by man and wife. The youthful Mr. Archuleta's sensitivity was lacking in that tweet by omission -- leaving out those of same-sex orientation, abandoned spouses who seek to remarry but without procreative purpose or capability, and likely others. Mr. Archuleta tweeted an apology that it was not his intent to leave anyone out, though like most apologies given for hurtful remark, no matter how sincerely expressed, hurt is not erased. Mr. Archuleta did get numerous bouquets of thanks and a standing ovation from the thousands gathered at the symposium finale, but one immediately discerned on gay blogs and LGBT sources that his apology was being less than fully accepted.

The understanding of America toward same sex couples and families has changed and become more accepting, even as some large religious institutions hold steadfastly otherwise. The dissenting faiths do not have to apologize for their belief, so long as they are neither seeking to use secular power to coerce conformity nor using a grandiose claim of complicity in the decisions of others that makes accommodation of differing views impossible.

The Supreme Court was wrong to take the case, for the precedent is weak, the religious traditions are in conflict, common law principles have been disregarded, and moral codes enacted into positive law have either gone unenforced been invalidated for their unequal enforcement. Finally, the scientific literature is often biased and unreliable, and in any event, Supreme Court justices are not scientists there is no legitimate basis upon which to reassign what is fundamentally a policy of philosophical choice to nonelected members of the constitutional system.

Until the Supreme Court got involved by taking up what on the surface may seem a typical circuit split in the federal courts, the promise of greater and more sympathetic understanding was working itself through the states quite favorably and without coercion or legal imposition. That more sympathetic understanding might or might not favor same-sex marriage in the states that remain open to additional referenda or initiative to determine the matter. The democratic choice having yet to be fully ascertained, it was premature to call in the Court since doing so results in imposition either way. No one should be coerced to take a religious test or make a religious oath to enjoy equality in every aspect of American life. Moreover, this call for sensitivity and respect is mutual.

David Archuleta's honest insight as to the higher, longer lasting value of faith over being idolized by many reveals why the principle of non-coercion remains essential to a happy resolution of the same-sex question; Does the Supreme Court deciding the issue observe that principle? It is open to doubt, serious doubt. In a pluralistic republic, the Court must not conceive of itself as the source of answer for a religious and deeply anthropological question.

Better there should be an unresolved circuit split, which, after all, is just a slightly different form of federalism, than a one-sided victory which will be seen by some on the winning side as an invitation to retaliate and punish; and some on the losing side to articulate more overstated -- Indiana-like -- claims of injury, leaving little room for either apology or forgiveness, and what David correctly hopes for in romantic love and I would broaden to all human relationships -- be they domestic or international -- that they bear the markings of fullest conception of love, which after attraction is necessarily dependent upon understanding.