Marci Hamilton offers the ridiculous suggestion here that the six Supreme Court justices who attended the Red Mass may have created the appearance of impropriety, raising ethical questions. Appropriately, she retreads the tired and blatantly anti-Catholic argument of University of Chicago Law Professor Geoffrey Stone, who criticized the fact that the recent partial-birth abortion decision was decided by a Catholic voting block. She then praises President Kennedy, who she paraphrases as saying that he would not take his marching orders from Rome, and suggests that it would be "illuminating" if the justices were this open about the relationship between their faith and their jobs.
First, it is worth noting that six justices attended. For those of you keeping count at home, there are only five Catholic justices. Hamilton acknowledges that Breyer, who is Jewish, attended, and she can’t quite figure out why, surmising that he did so perhaps out of solidarity with his brethren. This seems likely enough to me, but it also suggests that the Red Mass is not an event where marching orders are given and received, and that any feigned perception of such is dubious at best. Indeed, aside from her argument that the Red Mass is somehow special because of its focus on the beginning of the judicial term, the criticisms that she mounts about the content of the homily, which included references to life issues, could be (and perhaps tacitly are being made) about virtually every mass conducted in the DC area. It is not just homilies at Red Mass where issues such as the sanctity of life are raised, but rather priests commonly address these issues. Priests, particularly those in the DC area, commonly pray openly at their masses admonishing those in positions of power to respect life. Does this mean that no justice should ever attend mass, lest it somehow offend the Marci Hamiltons of the world that they hear these prayers? And what of liberal denominations that overtly praise abortion rights and gay marriage in their services, and read NYTs editorials from the pulpit (I am not kidding--I have seen it done)? Should we prohibit justices from attending those services?
Moving to her retread of Stone’s arguments, and his flaccid attempt disguise his musings as something other than anti-religious sentiment, I’ll leave those claims to Ed Whelan and Jan Crawford Greenburg and Rick Garnett, who have already thoroughly refuted them.
Finally, her claim that it would be good if the Catholic justices were transparent, in the spirit of President Kennedy, makes it clear that she hasn’t done her homework. Justice Scalia is constantly asked about his Catholicism and judging (a two-minute Lexis search will confirm this), and he frequently notes that his job is to uphold the Constitution. If upholding the Constitution at some point meant that he would have to disobey a binding moral teaching of the church--the example he gives is if imposing the death penalty were determined to be a sin--then he would resign, because he would not impose his religious views on the Constitution. I only wish that liberals on the Court who use the law as a vehicle to express their own, sometimes religiously-held policy preferences, would be so transparent.
Oh, and before Marci Hamilton and Geoff Stone dismiss my statements here as mere marching orders from the Pope, I should add that I am not a Catholic.