Oct 06, 2008

[caption id="attachment_1027" align="alignright" width="300" caption="Archbishop Wuerl and Cardinal Foley after the Red Mass at St. Matthew's Cathedral, Washington, D.C., October 5, 2008. Photo taken from Flickr Creative Commons by II Primo Uomo"][/caption]

Today is the first Monday in October—the day when the U.S. Supreme Court is back in session for a new term.

Yesterday was the Sunday before the first Monday in October—the day when the justices are invited to the Cathedral of St. Matthew the Apostle in Washington, D.C., to participate in the Red Mass, a Catholic tradition in the nation's capital since 1952.

The mass is attended by an array of Supreme Court justices, federal court judges, members of Congress, ambassadors, law school deans and professors and lawyers. Sometimes the president shows up.

This year, five justices attended, including Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Stephen Breyer.

The Red Mass, given its name for the red vestments traditionally worn by the officiating clergy, is sponsored by the John Carroll Society and is considered by the church to be "a traditional religious observance asking God's guidance on the administration of justice, and for the Nation."

In reality, it often is a rich opportunity for Catholic clerics to lobby the justices and other governmental officials on such controversial issues as church-state relations, abortion, gay rights, tax aid to religious schools and stem-cell research.

Yesterday was my first Red Mass. I listened intently to the homily given by Cardinal John Patrick Foley, and to my surprise, he was rather mild when it came to judicial lobbying. Foley cited many passages from the Bible, and followed by saying, "So many of these citations from Scripture sound very much like American ideals. In fact, many if not most of our values come not just from our God-given human nature but from our Judeao-Christian heritage."

He stated that "all of us may see law as a reflection of God's loving care," and he reminded the justices to follow God's guidance in building a society "of justice, of peace and of love."

In the past, speakers at the Red Mass were less subtle in advocating church views and criticizing Supreme Court doctrine. (There's a detailed report, headlined "Critical Mass," in the December 1990 issue of Church & State.)

At the 1989 mass, for example, then-Cardinal Anthony Bevilacqua deplored the "inviolable, impenetrable, and towering wall" that had been erected between church and state. He demanded a return to "religiously based moral values."

Three years earlier, Cardinal James A. Hickey criticized the constitutional basis for Roe v. Wade, stating "The language claimed to protect the right of privacy has been mistakenly expanded to encompass a woman's decision to destroy the life of her child and to an unconditional right to abortion during the first trimester."

The cardinal's homily was delivered to a congregation that included William Rehnquist, who had just been made chief justice and was sitting in the front row, as well as Justices Scalia and William Brennan.

It was this type of rhetoric about sensitive issues before the court that drove Justice Ruth Bader Ginsburg to discontinue her attendance at the mass. In an interview with Abigail Pogrebin, author of Stars of David: Prominent Jews Talk About Being Jewish, Ginsburg spoke of her discomfort after attending a Red Mass because she did not want to be lectured by bishops on the evils of legal abortion.

"Before every session, there's a Red Mass," Ginsburg said. "And the justices get invitations from the cardinal to attend that. And a good number of the justices show up every year. I went one year, and I will never go again, because this sermon was outrageously anti-abortion."

Added Ginsburg, "Even the Scalias – although they're much of that persuasion – were embarrassed for me."

The Red Mass began 55 years ago at a time when Catholic bishops were angry with the Supreme Court. In 1947, the Supreme Court ruled in Everson v. Board of Education, a case that provided for clear church-state separation. Justice Hugo Black wrote, "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable."

[caption id="attachment_1023" align="alignleft" width="241" caption="Cathedral of St. Matthew the Apostle in Washington, D.C. where the Red Mass is held annually in Washington, D.C. Photo taken from Flickr Creative Commons by NCinDC"][/caption]

It's pretty clear that today there are several justices on the court who pose a threat to this constitutional interpretation. With two Bush appointees, Roberts and Justice Samuel Alito, on the bench, along with Scalia and Thomas (and sometimes Kennedy), it's likely Red Mass clerics do not have to be so obvious in their pulpit statements.

As the new term begins, we urge the justices to remember that though they personally may heed the advice of Cardinal Foley in following God's guidance, when it comes to serving as members of the U.S. Supreme Court, they must be guided only by the U.S. Constitution.