The Catholic/Evangelical/Baptist/LDS/Lutheran amicus curiae brief in support of cert in the Utah same-sex marriage case

A couple weeks back, the United States Conference of Catholic Bishops, the National Association of Evangelicals, the Ethics & Religious Liberty Commission of the Southern Baptist Convention, the Church of Jesus Christ of Latter-Day Saints, and the Lutheran Church - Missouri Synod filed an amicus curiae brief in support of certiorari in the Utah same-sex marriage case.

The basic thrust of the brief seems right. The Supreme Court should "resolve without delay whether the Constitution requires the redefinition of marriage to include same-sex couples." At the same time, attention to the careful wording in the brief reveals the difficulty of simultaneously recognizing the Supreme Court's ultimacy in one sense, while also indicating the limited scope of that ultimacy and the possibility (and perhaps the likelihood) that constitutionalizing this matter will not shift the controversy over marriage from the Court to the People. 

The brief opens:

The time has come to end the divisive national debate as to whether the Constitution mandates same-sex marriage. We are convinced that a charter “made for people of fundamentally differing views,” Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting), does not prescribe a single national definition of marriage so contrary to the beliefs, practices, and traditions of the American people. We are convinced that the best way to resolve this wrenching controversy is by trusting the People and their democratic institutions. But a chorus of federal courts disagrees.

It may be tactically wise to suggest in an amicus brief in support of certiorari that a Supreme Court ruling on same-sex marriage has the potential to "end the divisive national debate as to whether the Constitution mandates same-sex marriage." And it might make sense to invoke Holmes's Lochner dissent. But I would be surprised if there is anything that the Supreme Court would write in an opinion that would end the debate over whether states are constitutionally required to define marriage to include same-sex couples. And we've already seen what one Holmesian approach to this issue results in.

The religious organizations argue, persuasively, that the legal uncertainty created by Windsor has impeded legislatures from acting on religious liberty protections in connection with same-sex marriage:

In our experience, legislators and other officials are frequently excusing their unwillingness to negotiate protections for religious liberty in the context of same-sex marriage on the specious grounds that such protections are invidious because same-sex marriage is a constitutional right or, conversely, unnecessary because this Court has yet to decide it is a constitutional right. Impeding the channels of democratic debate and engagement has been especially detrimental for religious organizations, given that States adopting same-sex marriage through legislative or popular lawmaking have often included at least some protections for religious organizations, while States compelled to make that change by courts have tended not to include such protections at all.

Even after a likely 5-4 decision creating a new constitutional right to same-sex marriage, however, much uncertainty will remain. The fight will turn to the scope and contours of this right, as well as the implications (both political and logical) of the Court's reasoning. Unlike desegregation, there will be no need for complex remedial decrees in particular cases. But the transition will not be as simple as issuing new forms that eliminate the terms "husband" and "wife." The scope of protections for cultural dissenters from the new federally imposed understanding of marriage, and everything that comes along with it, will be up for grabs. And it will be essential for religious organizations and others who adhere to a different orthodoxy from the new federal orthodoxy to work quickly with all reasonable people of goodwill, not so much to negotiate terms of surrender as to change the terms of engagement.

Depending for one's protection on the very judicial institution that so profoundly aligned itself in opposition to one's view of the legal institution of marriage does not seem a sound long-term strategy. In the short term, though, it is necessary to obtain a definitive declaration from the Supreme Court about where that institution stands amidst the legal uncertainty that it has created.