Thursday, October 04, 2007
Marci Hamilton on the Red Mass
In a column on FindLaw earlier this week, Professor Marci Hamilton wrote about this year's Red Mass. This is a traditional event in many places, in which the Catholic Church, as that redoubtable source of Catholic wisdom -- Wikipedia -- puts it, "requests guidance from the Holy Spirit for all who seek justice, and offers the opportunity to reflect on what Catholics believe is the God-given power and responsibility of all in the legal profession." I've attended the Red Mass in DC a couple of times, and it is, for good or ill, a star-studded event. Hamilton notes that this year's audience included six Supreme Court Justices -- Roberts, Scalia, Thomas, Kennedy, and Alito, all Catholics, and Justice Breyer, who is Jewish. At this year's Red Mass, according to one report, the homily "alluded to such issues as abortion, euthanasia, cloning and human sexuality."
Hamilton's column is careful. She says the Justices "have the right to worship as they choose"; that the archbishop who delivered the homily had every right to "preach his Church's beliefs"; and that "[n]o one is asking the Justices to abandon their faith -- least of all myself." But Hamilton says "there is reason to feel some unease with respect to their presence at the event." She suggests that the archbishop's description of the event as an opportunity "to rejoice in a mutually enriching alliance between religion, morality and democracy" meant "that we should rejoice in an alliance between a particular religious denomination, Catholicism, and the government." She suggests that recent discussion of the relevance of the number of Catholics on the Court "should have put the Justices on notice to tread carefully when it comes to religiously-freighted issues that they have the duty to resolve from a secular, law-based point of view." And she says that because the Justices have the burden of avoiding even the appearance of impropriety, "their presence at the Mass and its content still should raise questiosn for any number of Americans." She closes by suggesting that the Justices should "provide the public with greater reassurance that they view their judicial obligations as distinct from their religious obligations. Taking a pass on the Red Mass might well have done just that."
Is Professor Hamilton right to be concerned? I think not.
Part of the problem, I think, is that in some cases Hamilton misreads the homilist, and the meaning of the Red Mass. Consider again the statement that we should "rejoice in a mutually enriching alliance between religion, morality and democracy," which Hamilton takes as signifying "an alliance between a particular religious denomination, Catholicism, and the government." Well, it is an alliance of sorts, but not one of merger or capture; and I think it is not one the archbishop is urging on the Justices and other assembled legal professionals, but rather one that he believes is immanent in their work. To do justice, or to seek to do so, is one among many ways of being called to live well and decently in a world that is imbued with God's presence. And although the archbishop surely believes that the true path to understanding that presence lies in the Catholic Church, I think he, or many Catholics, also believe that all of us who work in the justice system share in a worthy calling, and all of us deserve prayers that we should do this work with strength and conviction. In that sense, I'm not sure that Hamilton is right to characterize the Red Mass as "a public affair intended to reinforce the ties between government and the Church" -- although I suspect, having been to this celebrity-rich event a couple of times, that some individuals sometimes take this mistaken lesson from the ceremony. Rather, I see it as an affair intended to acknowledge the special responsibility of those called to public service or to service to the justice system, to remind them of that responsibility, and to offer them the strength to live up to those responsibilities.
I also think, although she is not entirely clear here, that Hamilton overreads the archbishop's homily as directing these Justices and lawyers to reach particular substantive results in cases involving the hot-button issues he apparently alluded to. Judges and lawyers have a somewhat unique role in administering our system of law, and their office may not always extend to using their roles to engineer particular results in keeping with the Church's views (or anyone's substantive views). So I don't think the Justices necessarily understood themselves as being pressed to reach particular results -- although, in fairness, sensitivity to the nuances of the Church's teachings on this point may vary according to the individual homilist. (I take no position here on whether homilists at Red Masses should tread carefully in discussing particular issues with judges in the audience; I think the most I would say it what I would always say, regardless of the audience -- that one should always speak humbly and with care, and with some thought for the occasion, although without abandoning the heart of one's most deeply held convictions.)
There's a broader point here that bothers, me, though, and that is Hamilton's belief that the Justices are obliged to "provide the public with greater reassurance that they view their judicial obligations as distinct from their religious obligations." As stated, and at the risk of quibbling, I just don't think that's right. The Justices, or some of them -- although perhaps this is true of Justice Breyer, too -- attend the mass because they understand that their judicial obligations are not distinct from their religious obligations: that, in faithfully carrying out their judicial obligations, they are, in a deep sense, living out their religious obligations. For some lawyers, I am sure, the work would lose much of its meaning were it otherwise. But that is different from saying that their religious obligations are in conflict with their judicial obligations; to the contrary, they may well best understand their religious obligations as demanding that they faithfully and humbly hew closely to their professional obligations as lawyers and judges.
I acknowledge that this is not always a point everyone gets; people may assume that religious judges are obliged to serve their religion over their office, rather than that religious judges serve their faith precisely by honoring the duties of their office. Perhaps we need to have that conversation more, and more clearly. But I don't think the Justices need to absent themselves from the Red Mass in the meantime.
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