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.