Thoughts on political operations (not on what my opinion
would be if I were a Supreme Court Justice): The same-sex marriage issue before
the Supreme Court now is likely to be a watershed decision not unlike Brown v.
Board of Education Topeka, Kansas (1954
9-0 decision that overturned Plessy v. Ferguson 1896). I know some might argue that Row v. Wade
(1973 7-2 decision) was of the same magnitude. But Chief Justice Roberts’ sex
discrimination question (as opposed to the right to marry issue) made me wonder
if he is already thinking the way then Chief Justice Warren was thinking in
1954. Desegregation of public schools was such a volatile, divisive issue at
the time, threatening to plunge the nation into violent chaos, that he wanted
to find a way to avoid a divided court to signal this decision was not going to
be subject to political jockeying. Warren was able to convince all of the
justices to work together and work hard to find language and principles they
could all agree on for the good of the country. In the present situation a 5-4
decision either way will not settle anything but prolong a pitched battle. A 9-0
unanimous decision on anything seems hopeless in our present polarized
environment, though race relations in 1954 were certainly violently polarizing.
Ironically, in recent months we have not seemed to progress much on that front
since 1954. Chief Justice Roberts is clearly identified as an articulate
conservative, and he is also known as a skilled negotiator. Can he cobble
together a 6-3 decision either by finding an approach that persuades Justice
Kennedy to vote with the conservatives or a legal rationale with which he and
the liberal justices can agree? Either way, could he persuade one more justice
to go with him to make a 7-2 decision? What difference would it make for the
country if a one-vote-margin was avoided? What difference would it make to
those whose cause did not prevail? In Brown v. Board of Education of Topeka,
Kansas, the final legal underpinnings were not at the center of either side’s
arguments, which often happens in Supreme Court decisions. As those nine people
argue out their differences of opinion, unexpected results have emerged in the
past. Is a surprise possible that would bring together or at least leave intact
the concerns for individual conscience and social justice? I hope those of you
who know me recognize how important Christian faith and discipleship are to me,
with all that brings in the realm of theology and ethics based on Scripture. Because
of that I do not want the government (Supreme Court, Congress, public schools)
defining and mandating those things for me. Yet, I know that theology matters,
and what we believe necessarily shapes our decisions and actions in the public
arena as well as the private. This conviction (plus the U.S. Constitution’s
non-establishment of religion clause in the First Amendment) means the Supreme
Court must rightly try to sort this out without using religious categories, at
the same time working with the sincere convictions of each of the justices. I
also know I have friends and family fully convinced on both sides of this issue
and have purposely tried not to tip my hand in what I have written here, which
I know will not please those with strong conflicting opinions for whom the
answer is completely obvious and may think I am copping out. In some other
areas, I have recently had occasion to reflect on Romans 14:5, “Let all be
fully convinced in their own minds.” Paul appealed to those who were fully
convinced in their own minds of opposite opinions not to judge each other. I
also know that for those who are fully convinced in their own minds, this principle
doesn’t apply since what is at stake seems so clear to them. I know all too
well how hard it is for me, when I am fully convinced of something in my mind,
to understand why it is not equally as clear to someone who disagrees. Here, I
am not talking about the differing perspectives that distinguish Christians
from secular society but sincere disagreements between biblically informed,
prayerful, serious disciples of Jesus.
