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Friday, October 05, 2007

More re: Marci Hamilton's "Red Mass" essay

Paul's post, below, about Marci Hamilton's recent FindLaw column, is -- as one would expect from Paul -- thoughtful, charitable, and insightful, and I agree with him entirely.  I think it is worth underscoring, though, Marci's claim that "the tone and tenor of the majority opinion in Gonzales had to make any clear-minded individual pause."  More specifically, she suggests that "the way the opinion was written does open the majority to attack along the very lines [Prof. Geof Stone] outlined" in his op-ed suggesting that the five Justices in the majority were influenced inappropriately by their Roman Catholicism.

I have already expressed my disagreement with Geof (and now, I guess, with Marci) on this matter.  It seems worth adding my doubts about Marci's suggestion that Geof's criticism "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. The five Catholic Justices have to be aware, after the fallout from Gonzales, that questions have been raised about their ability to separate their judicial judgment from their religious belief." 

"Questions have been raised," true, but questions can always be raised.  The notions that, because of criticism about Carhart, the Roman Catholic Justices' decisions about participating in religious events are particularly suspect, or that they should enjoy diminished freedom to attend the Red Mass, seem quite vulnerable to the usual objections to hecker's-veto arguments.

Posted by Rick Garnett on October 5, 2007 at 03:39 PM in Constitutional thoughts | Permalink

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Comments

"I don't think MLK invited government officials to his church and tried to put the fear of god in them or threaten them with eternal condemnation if they don't change their policies."

Are you suggesting that the priest at the Red Mass attempted to "put the fear of god in them" or "threaten them with eternal condemnation"? That strikes me as rather ludicrous.

"As for the West Wing, Toby's reluctance to influence the President isn't the point. The point is the improper attempt to do so."

According to you, a priest isn't allowed to attempt to "influence the President" through sermons? That is surely the most extreme stance I've ever seen taken on the role of religion in society.

"The Catholic Church expressly theatens to deny religious participation to catholic politicians who don't take their marching orders on abortion."

When has "the Catholic Church" done that? I know that individual bishops have made such a threat (but never enforced it). In any event, you're citing a red herring. The analogous point is that MLK used his pulpit to try to influence public policy, just as the priest at the Red Mass did.

"Wide swaths of the gov't, including the whole Sup Ct, decide it's OK to attend a religious ceremony aimed at lobbying them on religious grounds; no MLK analogue there."

That's perhaps the oddest point I've seen so far: By your reasoning, MLK's sermons were appropriate because he was (you say) unpopular among politicians. Had "wide swaths of the gov't" decided to attend MLK's sermons, *then* his sermons would have been inappropriate? What a bizarre suggestion.

You love it when the right cites MLK? I love it when the right cites MLK, and the left (e.g., Scott Moss) loses its mind.

Posted by: Skeptical | Oct 6, 2007 11:16:00 PM

I'd be very surprised if any American politician (or judge) who's Catholic feels significantly constrained by threats of excommunication in reaching their own personal decisions about what policies are consistent with their faith.

Posted by: Bruce Boyden | Oct 6, 2007 4:40:03 PM

Rick, you shouldn't have mentioned Martin Luther King. You have insufficient ideological (or moral, or whatever) standing to do so. Please be advised that in the future you need to check in with the appointed moral gatekeepers before mentioning his name again.

Posted by: anonymous | Oct 6, 2007 9:06:04 AM

C'mon Scott. First, what happens in the Red Mass (besides the miracle of the Eucharist and all that) is not "lobbying." (At least, the Red Mass is no more about "lobbying" than what goes on all the time at, say, MLK's old church.) Next, "marching orders"? Please. The Church (or, more precisely, a tiny handful of bishops) suggests -- no surprise, I would think -- to all people not that they take "marching orders" but that they avoid culpably cooperating in what the Church teaches to be -- and, therefore, what professing Catholics profess to believe to be -- direct and culpable cooperation with immoral action. And, as it happens, Catholic bishops were at least as aggressive (which is to say, not particularly aggressive) in taking segregationists to task as today's abortion-rights supporters.

Posted by: Rick Garnett | Oct 5, 2007 8:35:49 PM

I don't think MLK invited government officials to his church and tried to put the fear of god in them or threaten them with eternal condemnation if they don't change their policies. I am not saying that the clergy may not argue policy. I'm saying they can't put the force of organized religion behind it.

As for the West Wing, Toby's reluctance to influence the President isn't the point. The point is the improper attempt to do so. And, in real life, where Sorkin doesn't write the script, the government is less conscientious about obeying the Constitution.

Posted by: Marianna Moss | Oct 5, 2007 5:18:01 PM

"Aaron Sorkin did this beautifully in the West Wing's death penalty episode, where a whole sermon was directed at Toby so that he would influence the President's views."

Did Toby, in fact, influence the President's views as a result of the sermon? Did he attempt to?

Good thing the Rev. Martin Luther King Jr. never attempted to use the pulpit to influence policymakers and judges. Such influence would have had a truly pernicious -- and unconstitutional! -- effect on our government officials. [End sarcasm]

Posted by: Skeptical | Oct 5, 2007 4:44:49 PM

I have a problem with any Justice attending the Red Mass, where the church expressly tries to influence the Justice's views on the various issues that come before the court. This smacks of unification of church and state. (Aaron Sorkin did this beautifully in the West Wing's death penalty episode, where a whole sermon was directed at Toby so that he would influence the President's views.) And this isn't just "keep God's view in mind when you rule." This is specifically "keep Jesus's view in mind when you rule, and only form the Catholic perspective." As a Jew, I find it very discomforting.

I absolutely have no problem with any Justice attending any religious service where the sermon is directed at the general population, and the clergy does not try to write the Supreme Court opinions.

Posted by: Marianna Moss | Oct 5, 2007 4:29:27 PM

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