Saturday, October 06, 2007

The Supreme Court at prayer

Archbishop Timothy Dolan spoke with Mike Gousha at Marquette Law School this past Thursday. He is an impressive fellow and John McAdams live-blogged the event.

What I want to note is a recent op-ed by Professor Marci Hamilton taking six Justices of the Supreme Court to task for attending the Red Mass in Washington D.C. this past Sunday. The Red Mass is a Roman Catholic tradition, praying for the Holy Spirit to guide officials and magistrates.

Archbishop Dolan was the homilist and he apparently spoke of reverence for life in the Catholic tradition (although he apparently also drew upon the sources for that reverence in other faiths and secular traditions). Professor Hamilton believes that the Justices somehow created a question as to their impartiality by allowing themselves to hear such things by the representative of a church in which such beliefs are linked to strong stances on abortion and euthanasia. (She did not mention capital punishment.)

Quite clearly she doesn't like what the Archbishop said, but the problem, if there is one, has to be more than what he said. That would imply that judges need to be cloistered and avoid hearing anyone express any principles that might have something to do with a matter that may come before them. Are they to shun the events of any organization that takes a position on an issue that might come before the Court? This proves too much.

Nor can it simply be that the statements were made at a religious service by a cleric. Some argue that religion is different from other affiliations because it demands uncritical allegiance at great cost (loss of salvation) for dissenters. That is, of course, a caricature of religion that bears no resemblance to what I have experienced in the Anglican and Roman catholic traditions and was nowhere in what I heard Archbishop Dolan say on Thursday. I should think Professor Hamilton is too smart for that. That religious allegiances are uniquely binding and divisive doesn't quite ring true in secular 21st century America. (If you are a law nerd and want to read more about the "division" argument in religion clause cases, check here.) The problem has to be more than that the Justices heard these statements at church.

Her problem is with the Roman Catholic Church and abortion. It seems that she believes that, at least for five of the six justices who are Catholic, attendance at the mass suggests some type of affirmation or obeisance to the views of the homilist or to the church of which he and they are a member. She did not, but might have cited the recent statements by Archbishop Raymond Burke has said that a pro-abortion politician has fallen out of communion with the Church and should not receive the sacrament. But what are the implications of that? Must Roman Catholic judges now avoid Mass (at which pro-life sentiments are sometimes expressed)lest their impartiality be questioned? Too much again.

In fairness, she doesn't want that. What she does want is a statement from the Justices about the relationship between faith and judging. She wants them to make a JFK-like disavowal that they will take marching orders from Rome. But why single out Catholics? Of course, Justice Scalia has done just that. But, again, why single out Catholicism or even religion in general? Religious affiliations and beliefs certainly exert an influence on people, but so do a variety of other beliefs and affiliations. Should the Justices list all the institutions and organizations with which they have an association and make clear that they are not bound by its positions? Should Judge Ginsburg have publicly distanced herself from her former employers at the ACLU and clients at NOW? Should Justice Thurgood Marshall have made clear that he is no longer marching for the NAACP? Those organizations have, after all, actually taken positions on questions of constitutional interpretation.

Seeking to bolster her position, Professor Hamilton invokes questions raised by another lawprof Geoffrey Stone who expressed concern that last term's Carhart decision, rejecting a facial challenge to a ban on partial birth abortion, consisted of an all-Catholic majority and, in the view of many, effectively overruled a prior precedent, albeit a very recent one. She apparently thinks that Justice Kennedy's decision in Carhart was so bad that it must have been (figuratively) written in Rome.

But you don't have to be a Catholic to defer to Congressional findings on disputed medical issues (even if Professor Hamilton thinks they "probably" are not) or, as Justices Alito and Scalia noted, that Roe v. Wade is bad law. In fact, Catholic Justice Kennedy was instrumental in saving Roe from the dustbin of history. Did he just now find Jesus or (as Professors Hamilton and Stone imply)Bendedict?

Professor Hamilton is prominent for advocating for a very weak Free Exercise clause. She is well regarded, although her most recent book, explaining that position for a general audience, was the subject of one of the more devastating academic reviews that I have read written by one of the leading religion clause scholars in the country. You can read her response and Professor Laycock's rejoinder here.

I don't want to get into that (I generally disagree with her, but have found her scholarly articles to be well done), but I do want to comment on the cheap shot that she took at Archbishop Dolan. She thinks that it was poor form to invite him to speak at the Red Mass because he has allowed the Archdiocese's lawyers to aggressively defend their client by, for example, making arguments that are perfectly consistent with Wisconsin precedent in a case that the Archdiocese ultimately agreed to sell the Cousins Center in order to settle. That kind of thing is unworthy of a law teacher.


Mike Plaisted said...

Oh, come on, Rick. What's wrong with pointing out what Dolan reprehensively did while he was trying to avoid the church's liability for employing molesting priests? And, it's a little disingenuous to criticize her for saying something without saying what she said, which was this: "...he has argued that the federal and state constitutions should protect the Archdiocese against any liability, and played hardball with child sex abuse survivors by moving to have their names made public..."

I don't see what's wrong with pointing that out. That sort of behavior should follow Dolan around no matter where he goes. He can hide behind his robes -- haven't we had enough of that?

As for the Supremes showing up at the ridiculous Red Mass so they can be lobbied from the pulpit by Dolan, I wonder what you would say if a Muslim member of the Court showed up in a mosque somewhere and got lectured by one of those guys.

Of course, Dolan could have decided not to use the occassion to make political statements. But then Dolan wouldn't be Dolan, would he? He's as much of a right-wing shill as his brother used to be on the radio. Not that Scalia, Alito, et al, need the help.

illusory tenant said...

I'm not sure what's worse: Prof. Garnett's brushing away the word "respecting" from the First Amendment, or his brushing it away with the aid of imaginary dialogue (see footnote 102).

That sort of rhetorical trickery makes Marci Hamilton look like Leo Pfeffer.

Rick Esenberg said...


Of all people. As you may know, the Wisconsin Supreme Court has held that it is unconstitutional to impose liability upon a church for negligent hiring, training and supervison of clergy. Maybe that was wrong. But do you really think that - in a lawsuit that is looking to bankrupt an organization where the people who actually were responsible are all gone - it is reprehensible to assert a meritorious defense? Would it be reprehensible for a lawyer defending the actual molesting priest to make whatever legitimate arguments that she could? Would it be reprehensible for the client to allow her to do so? That would be a funny attitude for a defense lawyer.

The reference to "moving to have their names made public" is, at the very least, a misleading characterization of what happened. My understanding is that the court had dismissed the claims of some plaintiffs on statute of limitations grounds. The archdiocese's lawyers stated that the judgment of dismissal had to contain the names of the plaintiffs in order to have res judicata effect. Although a letter from Quarles & Brady published by the Journal-Sentinel did not address the issue, the archdiocese subsequently made clear that it had no objection to keeping the record under seal. I haven't looked at the underlying issue, but was it reprehensible for lawyers to be concerned about whether a judgment in favor of their clients would bar future claims by the same plaintiffs?

As for addressing the abuse problem, I am unaware of any argument that Archbishop Dolan is not doing everything that he can to make sure it doesn't happen again. Remember - in Milwaukee - this stuff happened under someone else. (Incidentally, was he a left wing shill?)


I am glad someone read it. If you think that "respecting" can carry the weight that Chief Justice Burger wanted to place upon it, have at it. Professor Garnett, whose article is about something else (hence the relegation of this to a footnote) was, of course, citing an iimaginary dialogue written by someone else to illustrate that a quite plausible reading of "respecting" is that the purpose of the clause was simply to ensure that Congress left state religious establishments alone. So be careful what you wish for.

john said...

Rick, I'm sure you know the drill already. Mike "slip and fall" Plaisted is a dyed in the cheap suit polyester lib lawyer. Mike Plaisted views the world from that liberal perspective. Authority is wrong. Business is evil. People are being mistreated, imprisoned, spied upon, fed dangerous chemicals, are being injected with lead pant chips, and all conservatives hate babies and Negroes. The United States is bad and we're imprisoning good and decent Muslims who deserve Geneva convention rights and habeus corpus. Religion is bad, unless you are from the "religion of peace?. His Eminence, the most Reverend Timothy Dolan, is bad, evil and wrong, because he doesn't hand over the Gold chalices to everyone who claims to have been victimized 35 years ago. And those of us who hold conservative values and can defend them are living in double wide trailers and watching NASCAR 24/7. The Red Mass is ridiculous, and the "Supremes" attending it are now automatons doing the bidding of the Catholic Church, (the Church that is evil).
Then Slip-and-fall Plaisted asks whether "we've" had enough of His Eminence, the most Reverend Timothy Dolan "hiding behind his robes". Tolerant is in the dictionary. Mike the unhappy misfit lib Plaisted asks what you would say if a Muslim member of the SCOTUS, showed up in a Mosque somewhere and got "lectured" by "one of those guys".
As the pathetic Plaisted lectures you.
If a Muslim member of the SCOTUS didn't go to a Mosque and get lectured too by his Imam, I'd wonder why he went. Isn't that the job of our Clergy?? It's called a Sermon or Homily. Are we NOT supposed to be "preached" to, by the Religious clerics that we have freely chosen to follow???

Mike Plaisted said...

Holy moly, john. What the heck? Quite a screed there. Actually, I haven't done any PI cases ("slip and fall" to you) for 17 years or so. Also, not sure whether or not my suits are polyester, but I don't think they were cheap.

But, if you need to smear and make things up to knock down my points, well, again, that says more about you than it does about me. Of your presumptuous litany, only several items are even close to what I believe: "People are being mistreated, imprisoned, spied upon, fed dangerous chemicals..." Well, yes. You mean they're not? "...Muslims...deserve Geneva convention rights and habeus corpus" Yes, just like everyone else in U.S. custody. Are you saying Muslims should be treated differently?

The rest is garbage. But you know it and that's part of the smear, like wing-nuts calling Hillary a socialist. You can't debate the issues, so you tell lies, name-call and try to destroy. Pathetic, really. If you have no problem with Dolan trying to make the victims' lives even more damaged by revealing their names, well, go ahead and tell me why he's such a swell guy. At least Rick tries to blame it on the lawyers.

But, go on with your bad self, john. The hysterical venom in your comment tells me that I'm making progress.