Why the Supreme Court Will Not Decide the Same-Sex Marriage Cases

04/06/2015 10:07 am ET | Updated Jun 06, 2015

The Supreme Court will hear the same sex marriage case on April 28, but for the reasons described below will not decide them. Same-sex marriage which remains banned in over a dozen states and is subject to various limitations in others.

Having dodged the issue several times before on procedural grounds, many scholars think the prospect of the high court approving of same sex marriage is very likely. They are mistaken. It is far more likely that the Court will decide after argument that review or certiorari, as it is called in Supreme Court practice, had been improvidently granted, and the case will be dismissed and concluded without opinion.

Pope Francis meet Chief Justice John Roberts. Both men have a reputation -- at the last minute -- for rescuing their respective organizations from reaching beyond its practical or prudential capabilities. While as a matter of theology, few (if any) topics are beyond papal insight, and believers hold optimistically and tenaciously to the reminder in scripture that nothing is impossible with Christ, Pope Francis has had a very good run so far not overplaying infallibility. Indeed, it is fair to say that no single papal address or homily has yet to have the popular impact of his casual rhetorical response to a reporter's question seeking his view on homosexual persons.

Asked about whether a homosexual person may become a priest, Francis responded:

"Who am I to judge a gay person of goodwill who seeks the Lord?" the pontiff said, speaking in Italian. "You can't marginalize these people." The comment is being studied by the Church's Congregation of the doctrine of faith (CDF), and not surprisingly, Francis has opposition there -- after all, in the late 1980s, the CDF under the direction of Pope John Paul II and then-Cardinal Ratzinger (now Pope-emeritus Benedict XVI), 2015-04-05-1428192869-2887768-AmbassadorKmiecandPopeBenedictXVI2.jpg
continued to refer to homosexuality as "disordered," and called for opposition even to laws that would protect homosexuals from discrimination.

It is well-known that the Catholic Church still stands foursquare against same-sex marriage, even as it tries to express compassion for homosexual persons. Of course, still in the art of Easter, the ultimate statement of compassion is that of Christ himself who on the cross called upon his father, saying, "Forgive them father for they know not what they do." Like Francis, Jesus's call to his father at the moment of his death was truly nonjudgmental. If a culture does not "know what they [viz. "we"] do," one would think there might be a need not to be too quick to write into law a particular view. I explore the importance of avoiding the extremes of imposed sectarianism or coerced secularism in a new book soon available from Oxford Press, but one of its essential points is that for judges to write into the law of the Constitution a view that was either pro-or-anti-gay misconceives the judicial function and provokes resentment from the disfavored side in ways that democratic choice for one side or other does not. Moreover, the same-sex issue is arguably way beyond the judicial pay grade. Yes, Supreme Court justices have an obligation to make sure that government benefits and operations are conducted with equality (e.g., as the Supreme Court rightly decided in the earlier decision U.S. v. Windsor, it is profoundly unjust to exempt traditional couples from the estate tax while heavily taxing same-sex couples. But conducting government business in an even handed way is far different than pronouncing same-sex and traditional couples to be culturally equal. They may be. But the members of the Supreme Court are not trained anthropologists or demographers. Similarly, it is not surprising that Francis prior to his papacy pronounced the same-sex marriage issue is primarily one of anthropology. Thus far, the Court and the Pope have been sensitive to prudential limits. Taking the same sex case might not have at first triggered the alarm alerting the justices to the risk of over extension, but the latest religion freedom wars have now put them on notice.

Neither side in the latest scuffle over religious freedom can be characterized as observing the virtue of prudence -- although if people looked, they would have discovered that the Pope had something to say on this topic. In particular, Francis was careful not to say that his church was silent on the matter, but like many Americans, he does think one's sexual practice ought not to be the constant chatter of public discussion. Nor does he seem comfortable with the lobbyist-role being played by some of his American bishops. For example, the U.S. Conference of Catholic Bishops have been advocating same-sex marriage bans in the view that same gender marriages are not procreative and they lack complementarity. The bishops have no particularly insightful answer explaining why under Catholic teaching, marriage is made available to the infertile but not same-sex couples nor do they do much to explain complementarity beyond referring to obscure writing in philosophical journals that basically amounts to a high brow version of an appreciation for the differences in human anatomy.

So the American bishops have been anything but silent, and frankly, I cannot understand how all this lobbying relates to their training as bishops or the work they obviously need to do to help me and others like me not lose the eternal life earned for me by our Lord and Savior. As Pope Francis writes: priests and bishops may be asked for their advice, but they do "not have the right to force anything on anyone's private life. If God, in creation, ran the risk of making us free, who am I to get involved? We condemn spiritual harassment that takes place when a minister imposes directives, conduct, and demands in such a way that it takes away the freedom of the other person. God left the freedom to sin in our hands. One has to speak very clearly about values, limits, commandments, but spiritual and pastoral harassment is not allowed." You got to love this guy.

Of course, the pro-gay side makes claims of anthropological similarity and trots out various studies showing gays to be equally good parents and so forth. Indeed, Indiana at one time - before it got tarred and feathered for passing virtually the same law as every other state touching on the topic of religious freedom when the world's focus was elsewhere - had one of the most judicially honest reasons for why a state might reserve marriage for heterosexuals. The reason: because unlike homosexual couples that spend a fortune trying to have children by artificially assisted means and thereby exhibit a truly positive commitment to child rearing, a good many heterosexuals are irresponsibly spreading their seed across the Hoosier landscape, and everywhere else, but are nowhere around for child rearing and related expenses. Marriage licenses were a rational means to at least get some pertinent address information for when those needs arise. Hey, Walmart and Angie's list, do you really support absentee husbands and irresponsible family planning?

If all this cultural doubt wasn't enough, maybe before Justice Kennedy gets out his dictionary of Hallmark rhetoric -- which I for one enjoy -- waxing eloquent about intimacy of any type (and in the right context and place, rhetoric that can be quite inspirational so long as the Court's opinion foregoes putting into its pages those awful music makers found in greeting cards) maybe a little attention ought to be paid to how those with homosexual orientation are said to struggle with their own identity. Admittedly, this struggle could merely be a reaction to the incessant chatter about the topic or their status.

Okay, admitting the sociological or anthropological nature of the issue, isn't there some law on the subject? Sure there is. But it's not law that the US Supreme Court is uniquely empowered to apply. Indeed, it is state and local police power that is being interpreted and the whole idea of a Federalist Republic is that the states get to pass and interpret their own laws... So if the justices want to say something after the argument other than "whoops wrong case," they can all shout in unison: "hooray for federalism" and go on vacation. And in that happy event, the one salutary by-product of all the huffing and puffing over Governor Pence's loss for words will be his contribution to the reinvigoration of the Tenth Amendment.

What is the likely interpretation at the state and local level? Just this, that those who turn their gay and lesbian neighbors away from a wedding cake or a dance hall or any service supplied by a private entity that holds itself open to the public, and thus effaces or denigrates a gay or lesbian human being is most likely running afoul of public accommodation laws going back generations into the common law. The fact that anyone could conceive of discriminating over these humdrum matters as a principled defense of religious freedom sadly reveals the meanness of the present age.

That said, there has been recent judicial misdirection here and taking the same sex case in disregard of the limits of the judicial role or the structural protection of federalism is arguably a byproduct of overextended claims of religious freedom that the Catholic Church and other conservative faiths aided and abetted in the Hobby Lobby case (women employees can be denied access to health care involving contraception disapproved by the owners of a private, closely held business.) Those contraception's were disapproved because the plaintiffs sincerely believed them to be abortifacients. Whether they were or not is open to question, but at least the Court could be seen as being sympathetic on the issue of protecting human life which arguably ought to weigh more than defending the churlish right to not bake a cake or take a photo. Why the Court would want to reach out for another opportunity to coerce one set of Americans over another set of Americans is baffling enough without having to explain why the justices would jump at an opportunity to take a position of the bad guy - or at least an extremely hypersensitive merchant at the margins of moral theology. (Catholic theologians have a very elaborate, and ultimately indecipherable and unconvincing, theory of moral cooperation that it cheapens when it extends it to denials of service by public accommodations).

As I see it, coming to the aid of such discrimination only reinforces that Christ was not speaking narrowly when he asked his father to forgive them. And this most definitely is not a one-sided criticism for also joining the ranks of "them" in need of forgiveness would be those who would so readily extend newfound protections for those of a minority sexual orientation or who would threaten to blacken the eye of reasonable efforts, be they in Indiana or elsewhere, to accommodate diverse faith traditions.

Repeatedly, one hears expressions ranging from joy to sheer puzzlement at how "we the people" have gone from a nation of homophobes to a nation of toleration. There's often a genuine question underneath the expression of "how did that happen?" There is seldom a good answer given, but the beginning of one is the observation that the gay cause, if I may temporarily and inartfully call it that, advanced not by legislated or economically-threatened force, but by neighbors getting to know neighbors; by all of us seeing and knowing gay families that were acting like families have always acted - that is, caring most and sufficiently for those in their immediate household. This conception of family is an irreplaceable cultural unit, and that irreplaceability goes a good distance to explain why polygamy and other household forms of reduced accountability for the formation of discerning citizens can be differentiated even after legal obstacles to same-sex marriage are removed.

The latest "religious freedom" war has been an embarrassment to faith. In this country, no faith has an entitlement to legal endorsement. There is no established church - and that means neither pro-gay nor anti-gay theologies or perspectives have a claim to be favored over the other.

The Supreme Court was wrong to think it has a role in this matter. Advocates for same-sex marriage before the Court are making all the usual arguments: marriage, it is said, is a fundamental right and it cannot be denied; affirming traditional heterosexual marriage requires affirming its homosexual counterpart; and the comeuppance of them all: it is simply irrational to draw distinctions in the law on the basis of sexual preference. These arguments are best heard in the states where particular limitations, if any, can be separately considered and likely passed upon initially by means of initiative or referendum by the people of the state.

Taken separately, each of the arguments can be supported because each has a measure of sense to it. But it is only a partial measure of sense, since each argument is only partially right, and here is why: there is no constitutional basis to prefer religious freedom over freedom from gender-based discrimination or vice versa.

This is not the first time two civil liberties contested for preference against the other. Thus, the Supreme Court correctly held thirty years ago that religious freedom could not immunize racial discrimination. Having fought a bloody civil war and thrice amended the Constitution to get the tarnish of slavery out of the document, the Court was not about to give legal sanction to a new "badge of slavery." By comparison, it was analytically a closer question whether the Court correctly denied a Mormon religious freedom claim to practice polygamy. No one fought a civil war for the right to have multiple wives, and it was open to debate what the sociological effects of polygamy might be, though there is reason to worry about subordination and associated forms of marital abuse.

Matters of religious faith should not be taken up by a secular Supreme Court too easily or prematurely. That is especially true when the contending sides seek the force of law to coerce the belief of the other. The Supreme Court of United States should deny further review and pronounce that its grant of certiorari had been improvidently extended. Failing to do so, I fear, will only produce a result much in need of forgiveness.

There will be difficult cases ahead here, especially those related to auxiliary services run by religious organizations who will want to maintain the consistency of their teaching in church as well as school. This will again put in play the extent to which ministers and other religious leaders and teachers are exempted from the general civil rights statutes. This is what Gov. Pence was attempting to defend, and people who are normally on the side of religious freedom knew that very well, and yet it was reminiscent of the 1950s and the red scare, to watch how many people walked by the governor without lending a hand as he was being pummeled by gay advocates seeking to coerce dissenting religions. And again I for one am going to think twice before going back to Walmart because no matter how many greeters they have, Walmart was no friend of freedom in this matter. But I suppose if Jesus can forgive me, Walmart deserves my understanding if for no other reason than volume and price.